Abstract
The previous steps in company of the reasonable citizen have allowed us to offer her an account of the structure of the obligation to pay taxes and of the tasks that it is entrusted by a democratic legal system. But our reasonable citizen is perfectly entitled to ask once again Why should I pay my taxes? At this point we realise that not only tax theory has been poor in analysing its object, but that it has not been generous in providing reasons why people should comply with their tax obligations. Figuring out why this question was not considered as relevant could be a research subject of its own, but it might suffice to point the following two ideas. First, that within the formal paradigm of tax law, justification was referred to the allegedly natural economic laws. Taxation was an appendix of free markets, in trust of collecting revenue with which to finance a limited range of public goods. Second, that within the material paradigm of tax law, the question was nullified by the grounding of the obligation in the state’s sovereignty, a black box in which it was possible to include all questions for which there was not a satisfactory theoretical answer. To this we can add the general positivist climate. This was quite inimical to all research questions of a normative character. It was only with the publication of Rawls’ major work, The Theory of Justice, that the pendulum swung back to normative research.
“To live in a public realm with neither authority nor the concomitant awareness that the source of authority transcends power and those who are in power, means to be confronted anew, without the religious trust in a sacred beginning and without the protection of traditional and therefore self-evident standards of behaviour, by the elementary problems of human living-together”
Hannah Arendt, “What is Authority” in “Between Past and Future”
“This rupture, and the incessant activity of questioning that goes along with it, implies the rejection of any source of meaning other than the living activity of human beings. It therefore implies the rejection of all “authority” that would fail to render an account and provide reasons, that would not offer de jure justifications for the validity of its pronouncements”
Cornelius Castoriadis, “Democracy as Procedure and Democracy as Regime”
“Anarchism is, in my view, an expression of the idea that the burden of proof is always on those who argue that authority and domination are necessary. They have to demonstrate, with powerful argument, that that conclusion is correct. If they cannot, then the institutions they defend should be considered illegitimate. How one should react to illegitimate authority depends on circumstances and conditions: there are no formulas”
Noam Chomsky, interviewed by Tom Lane
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References
Wicksell (1958, 87).
Wicksell (1958, 82).
Wicksell (1958, 87, 96).
Wicksell (1958, 94).
This is something that has inspired not only liberist conceptions of taxation, but an author so clearly at the core of the liberal paradigm of taxation as Richard Musgrave. See §174.
Wicksell (1958, 92).
Wicksell (1958, 89).
Wicksell (1958, 94).
Wicksell (1958, 96)
His scepticism can be seen in remarks like the one contained in Wicksell (1958, 90): “The whole discussion of tax justice remains suspended in mid-air so long as these conditions [i.e. the three premises aforementioned] are not satisfied at least approximately” 10. At any rate he is not to be associated with any form of communitarianism. His existential commitments were clearly at odds with it. As his biographer refers to us [Torsten (1996)], Wicksell was a committed critic of the positive morality of his times. An early pamphlet entitled Marriage or Prostitution denounced the conservative sexual mores of XIXth century Sweden. Wicksell (1958, 108–116). For example, he argues against an unlimited right to inherit and for taxing windfall gains in land value.
Cf. Zweigert and Kötz (1992, 354) for a comparison of ‘causa’ and consideration.
See French Civil Code, article 1131: “l’obligation sans cause ou sur une fausse cause, ou sur une cause illicite, ne peut avoir aucun effet”. Spanish Civil Code, article 1274: “En los contratos onerosos se entiende por causa para cada parte contratante, la prestación o promesa de una cosa o servicio por la otra parte; en los remuneratorios, el servicio o beneficio que se remunera y en los de pura beneficencia, la mera liberalidad del bienhechor”; Italian Civil Code, art. 1325: “I requisiti del contratto sono: 1) l’accordo delle parti (1326 e seguenti, 1427); 2) la causa (1343 e seguenti); 3) l’oggetto (1346 e seguenti); 4) la forma, quando risulta che è prescritta dalla legge sotto pena di nullità (1350 e seguenti).
Cf. Zweigert and Kötz (1992, 419).
There is a reduced number of obligations without cause.
For example, Aquinas, in the Summa Teologica, argues that if the contributions requested by the Prince are not just, or their amount exceeds what is necessary, the Prince is acting ultra vires. A thorough account of Scholastic thinking on public finance is to be found in Pomini (1951).
A powerful statement in Griziotti (1951, 301).
Cf. Raneletti (1974, 791).
Cf. Raneletti (1974, 798), Griziotti (1929, 177), Pugliese (1937, 100). This conception is very frequent in Italian tax scholarship. See further De Viti de Marco (1928) Berliri 1945).
Raneletti (1974, 820).
Cf. Griziotti (1929, 159).
See Griziotti (1951, 305–6).
Cf. Escribano (1988, 251).
Among the first authors to formulate this theory, we can make a reference to Hensel and Nawiasky. Cf. Hensel (1956, 5): “A basic distinction can be established between material tax law, through which tax events are determined, and formal tax law, through which the monitoring of tax compliance takes place (basically attributed to the Administration)”. See also Nawiasky (1982, 29).
Some authors were conscious of this. See Jarach (1943, 31,551 Cf §320ff.
However, several authors pointed in the direction in which the central ideas of constitutionalisation of tax law will lead us. This is the case of Jarach (1969, 23) who prefigured the transformation of the idea of the self-limitation of the state to the constitution of its powers through constitutional law, and of Valdés Costa (1992).
One could say that taxing-process theories had an impact on tax law dogmatics not so dissimilar from the one which Viehweg had on legal theory. In both case there is an attempt to overcome traditional dogmatics. For Viehweg’s contribution, see García Amado (1988) and La Torre (1998a, especially at 9).
Rodríguez Bereijo (1976, 294, 316).
Most negative answers are conditioned by the way in which the obligation is characterised. If we proceed to conceptualise obligations as general (in the sense of applying o all laws on all occasions) and indefeasible (or what is the same, as excluding action on the basis of whatever reasons outside the legal domain and contrary to the legal prescription), we will unavoidably come to the conclusion that there is no possible foundation for a general obligation to obey the law. This illustrates quite clearly how much is at stake in this section.
Cf. Singer (1974), Gans (1992, 5).
The argument that there are exemptions from the obligation as a legal one is based on an incomplete reconstruction of legal norms. If the rules for the use of a park says that it is forbidden to walk on the grass, and another one says that it is allowed to play football from 12 a.m. to 5 p.m., what at first glance looks as an external exception turns out to be part of the rule when we proceed with its systematic formulation.
Cf Kant (1996, 44): “Everyone must grant that a law, if it is to hold morally, that is, as a ground of an obligation, must carry with it absolute necessity; that, for example, the command ‘thou shall not lie’ does not hold only for human beings, as if other rational beings did not have to heed it, and so with all other moral laws properly so called; that, therefore, the ground of obligation must here not be sought in the nature of the human being or in the circumstances of the world in which he is placed, but a priori simply in concepts of pure reason; and that any other precept, which is based on principles of mere experience- even if it is universal in a certain respect- insofar as it rests in the least part on empirical grounds, perhaps only in terms of a motive, can indeed be called a practical rule but never a moral law”
This is formulated by Nino as the “fundamental theorem of legal theory”. It was already formulated in Nino (1985, Chapter IX). He put it in the following way in Nino (1993a, 811): “Legal norms do not by themselves constitutive reasons for justifying actions and decisions (like those of judges), unless they are conceived as deriving from moral judgments; normative propositions that exhibits the distinctive traits of autonomy, justificatory finality, universalisability, generality, supervinience and finality”.
Cf. §§294–7.
Cf. §11, §85.
This is further analysed in §289–93.
Cf. §10.
Cf. §81.
See §§84ff.
Rawls (1964, 7)
Rawls (1999a, 20ff)
Raz (1975, 35).
Kelsen (1945, 3), Bengoetxea (1994).
See §262.
As a side remark, this argument by Raz seems to me difficult to reconcile with his tendency not to distinguish too neatly between theoretical and practical authorities.
As it is indicated later on, Raz himself does not characterise the general obligation to obey the law in such terms. He considers that it must be seen as an absolute reason, according to the claim to correctness made by the legal system itself.
Raz (1975, 39).
Raz (1975, 40).
Raz (1975, 44).
Raz (1975, 44).
Raz (1975, 183).
Gans (1986, 385).
Gans (1986, 385).
Gans (1986, 391): “The fact that a rule was issued by an authority for co-ordination is no reason for not considering, checking and weighting further reasons liable to be relevant to the situation to which the rule applies. However, the fact that co-ordination might be jeopardised if the rule is not obeyed, may be a strong enough reason not to act on any such further reasons that are discovered,. These subtleties are buried in Raz’s analysis”.
Cf. Raz (1979, 234): “The obligation to obey [the law] (…) is a general obligation applying to all the law’s subjects and to all the laws on all occasions to which they apply”. In the following page, he insists that it should not be as a prima facie obligation, but as a peremptory one”
Against, cf. Copp (1999, 10ff).
Of course, the classic formulation is to be found in Kant. See also Berlin (1969, 131): “I wish my life and decisions to depend on myself, not on the external forces of whatever kind. I wish to be the instrument of my own, not of other men’s act of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside (…) I wish, above all, to be conscious of myself as thinking, willing, active being, bearing responsibility for my own choices and able to explain them by reference to my own ideas and purposes”. Cf. 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 of order is categorical, not conditional. Only a being that can act in a self-regulating way, judging between possible courses of action through voluntary commitment to some rationally willed order, and seeking to realise the willed order in action, can fully grasp the concept of ‘wrong’ action, and therefore, the concept of right-as-not-wrong action. Only such a being can make full sense of auxiliary verbs such as ‘ought’ or ‘should’”. A classic statement in terms of political anarchism is to be found in Puente (1985): “[W]e do not mind a restriction if we believe it to be just, and provided that is left up to us to be the judge of that. We do reject it, however, with all the force we can muster, if it something imposed upon us without our having a say on the matter”.
Wolff (1976).
Wolff (1976, 18).
Simmons (1979, 5).
González Vicen (1979), González García (1987).
Nino (1989a).
Cf. also Rawls (1971, 347); “The practice of promising exists for precisely for this purpose; and so while we normally think of moral requirements as bonds laid upon us, they are sometimes deliberately self-imposed for our own advantage
In his doctoral thesis [A Study in the Grounds of Ethical Knowledge], quoted by Estlund (1997, 184), Rawls already argued that: “[H]ow do we know that the entity in question will always behave in accordance with what is right [?] This is a question (…) which we can always ask, and which we always do ask, and it shows that we do not, in actual practice, hand over the determination of right and wrong to any other agency whatsoever”. Cf. also Rawls (1964, 9), Rawls (1971, 357, 360).
See §§193–7.
See e.g. Finnis (1980, X.3).
See Mansbridge (1996).
See §13.
Raz (1986, 92): “Undertaking an obligation to obey the law is an appropriate means of expressing identification with society, because it is a form of supporting social institutions, because it conveys a willingness to share in the common ways established in that society as expressed by its institutions, and because it expresses confidence in the reasonableness and good judgement of the government through one’s willingness to take it on trust, as it were, that the law is just and that it should be complied with” He explicitly accepts that this idea is related to an organic conception of the relationship between the individual and the political community. The attitude of trust is not normally formed through deliberate decisions, but through the normal habit-forming process of education and habituation. It includes as a constituent element the obligation to obey the law. Cf. Raz (1987, 93).
Raz (1986, 70): “ States claims to have more authority than the one which could be justified within the framework of the normal justification thesis” Raz (1986, 75): “The law is the only human institution claiming unlimited authority” Raz (1986, 77): “A qualified endorsement of the authority of the law falls short of acknowledging the authority the law claims for itself [i] it only admits a prima facie obligation to obey the law; [ii] it denies the right on the side of the law to impose certain obligations” Raz (1987, 82): “All governments claim the right to rule us by the right reason, i.e., to take over from us the job of deciding what we should do, on certain matters” Raz (1985, 300): “It is exemplified in the claim that even a bad law should be obeyed as long as it is a law in force, while lawful action is taken to try and bring about its amendment or repeal”.
Cf. Raz (1986, 53)”The normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply ton him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly”
Raz (1994, 335): “In some areas and regarding some people, caution requires submission to authority. In others, it leads to the denial of authority. There are risks, moral and other, in uncritical acceptance of authority” (my italics).
Raz (1986, 89). See also MacCormick (1981, 159), MacCormick (1982, 108) and Weinberger in MacCormick and Weinberger (1986, 121). This fear was already quite paradoxically shared by Godwin (see 1976, 241): “[T]he greatest mistake that can arise in the progress of obedience is where it shall lead us, in any degree, to depart from the independence of our understanding, departure which general and unlimited confidence necessarily includes”
Raz (1986, 100, 101): “The two questions [that of legitimate political authority and the obligation to obey the law] are one if we understand the obligation to obey the law as an obligation to obey the law as it requires to be obeyed”; which is in contrast to the understanding of the obligation in contemporary political philosophy: “[A]n obligation to obey the law as it is understood in political writings today is a mere prima facie obligation. Such an obligation, usually thought of as nothing more than a reason to obey, may be based on reasons other than the authority of the law”.
Raz (1994, 327).
See §27.
MacIntyre (1984) offers us a quite telling list of them: “member of a family, citizen, solider, philosopher, servant of God”.
Cf. Kant (1996, 455): Public law is a “system of laws for a people, that is, a multitude of human beings, (…) which, because they affect each another, need a rightful condition under a will uniting them”. See also Habermas (1976, 179): “the pretence to clear cut politics of the handling of social affairs, to cleanse social questions, a radically democratic formation of consensus that puts a stop to social repression- that is not a conceivable path for any modern society”.
See § 9.
Dworkin (1987b, 2): “[T]hough it is clear enough how a democracy differs from these other structures of government in general, democracy is itself an idea of great abstraction if not ambiguity. Democracy requires that officials should be elected by the people rather than chosen through inheritance or by a small group of prominent families or electors. But that abstract statement does not decide: which officials, if any, should be chosen not by the community as a whole but by sections or groups within it, how power should be distributed among officials chose in these different ways, how far elected officials should be permitted or required to appoint other officials to exercise some of their powers, which responsibilities should be held by elected and which by appointed officials, how long officials of either sort should serve, whether their terms of office should be fixed or subject to early termination by those who elected them, how far elected or other officials should themselves be free to change the constitutional arrangements under which officials are elected, whether a constitution should set limits to the powers of officials, so that the officials cannot themselves these limits and so forth. Though we are all democrats, these are lively questions among us, and some are matters of heated controversy”
This idea, clearly implicit in Between Facts and Norms, has been elaborated with greater precision in some latter articles. Cf. Habermas (1996a, 121): “The idea of self-legislation by citizens, then, should not be reduced to moral self-legislation of individual persons. Autonomy must be conceived more abstractly, and in a strictly neutral way” with Habermas (1995, 15): “Moral self-determination in Kant’s sense is a unified concept insofar as it demands of each person, in propia personam that she obey just those norms that she herself posits according to her own impartial judgment, or according to a judgment reached in common with all other persons. However, the binding quality of legal norms does not stem solely from process of opinion- and will-formation, but arises also from the collectively binding decisions of authorities who make and apply law. This circumstance makes it conceptually necessary to distinguish the role of authors who make (and adjudicate) law from that of addressees who are subject to established law. The autonomy that in the moral domain is all of a piece, so to speak, appears in the legal domain only in the dual form of private and public autonomy” (my italics).
Rawls (1971, 334).
Rawls (1971, 333).
There are two distinct versions of Rawis’ argument concerning the existence of an obligation to obey the law. In the first, he grounds it exclusively on the idea of fairness (this corresponds to his 1964 article on civil disobedience). In the second, he adds the argument from the natural duty of justice. The duty of fairness has been converted into an additional ground for individuals that accept specific benefits offered by the social scheme of co-operation. In the Theory of Justice, (Rawls 1971, 335–6) he offers a rationale for the change: “There is still the question whether the parties in the original position would not do better if they made the requirement to comply with just institutions conditional upon certain voluntary acts on their part, or example, upon their having accepted the benefits of these arrangements, or upon their having promised or otherwise undertaken to abide by them. Offhand, a principle with this kind of condition seems more in accordance with the contract idea with its emphasis upon free consent and the protection of liberty. But, in fact, nothing would be gained by this proviso. In view of the lexical ordering of the two principles, the full complement of the equal liberties is already guaranteed. No further assurance on this score are necessary. Moreover, there is every reason for the parties to secure the stability of just institutions, and the easiest and most direct way to do this is to accept the requirement to support and to comply with them irrespective of one’s voluntary acts”.
Honoré (1987, 1 19): “Individual or social needs justify the imposition of special duties on people despite their unwillingness to take on the burdens that are involved. Membership of the communities to which we belong is not cost-free”.
Habermas criticises the fact that Arendt relies on too facile (and historically distorted) distinction between politics and economics, which ends up by sterilising politics. She claimed that institutionalisation of the public sphere is needed in order to avoid the private sphere contaminating the public one. Habermas considers that there are other reasons, like the difficulties related to communicative action.
Some authors have argued that one of the factors that explains the differences between ancient and modern forms of democracy is the realisation of the importance of filtering interests through the political process. In systems in which politics was a matter of action, it was seen as proper that election took place through ballots. Only in such a way it was possible to distribute the chances of getting involved in effective action. But with the emergence of the idea of legitimate pursuit of interests in the public sphere, ballots were substituted by electoral representation of interests. Cf. Manin (1996)
Habermas (1996a, 150).
Ackerman (1991).
Habermas (1996a, 150) argues that an adequate mapping of politics must include not only spontaneous or non-regulated political interaction, but also “the use of administrative power within the political system, as well as the competition for access to that system”.
Habermas (1996a, 460): “(…) [T]hen one can leave open the further question of whether there are moral grounds for entering a legal order in the first place- the problem that rational natural law posed as the transition from the state of nature to civil society. The positive law that we find in modernity as the outcome of a societal learning process has formal properties that recommend it as a suitable instrument for stabilising behavioural expectations; there does not seem to be any functional equivalent for this in complex societies (…) The philosopher should be satisfied with the insight that in complex societies, law is the only medium in which it is possible reliably to establish morally obligated relationships of mutual respect even among strangers” Rawis (1964, 9): “The acceptance of a constitutional procedure is, then, a necessary political device to decide between conflicting legislative proposals”
Alexy (1989, 16) refers to the following: “[I]ts statute-bound character; its necessary regard for precedents; its involvement with doctrinal studies as developed through an institutionally organised profession of academic lawyers, as well as -and this of course is not true for academic legal discourseits subjection to the requirements of procedural ordinances and regulations”. See also Alexy (1989, 214ff).
Dworkin (1982) and Dworkin (1986).
The idea was already summarised by Proudhon in his motto Des réformes tout jours, de utopies jamais.
Cf. Habermas (1996a, 145): “In this situation [Europe of the XVIIth and XVIIIth century], the idea of government by law had the critical sense of uncovering the contradiction built into the established legal orders of the time: a normatively unjustified privileging of the most powerful interests certainly can be concealed in forms of legal authority”.
On the transformative character of preferences, see Sunstein (1991), Gerstenberg (1998). Christiano (1996, 48) applies this argument to the conception of democracy “Democratic decision-making is not merely a matter of each person voting his or her preference. Individual citizens’ preferences are formed in society as a result of social interaction they have with others and the institutions that structure social interaction. It is important for them to reflect critically on them and improve their preferences so as to have a sophisticated appreciation of their interests and ideals. A democratic theory ought to have something to say about what constitutes a reasonable and just context for the formation of these preferences”.
Habermas (1996a, 179); “Majority rule retains an internal relation to the search for truth inasmuch as the decision reached by the majority only represents a caesura in an ongoing discussion; the decision records, so to speak, the interim result of a discursive opinion-forming process (…) Doubts about the legitimacy of majority decisions on matters with irreversible consequences are revealing in this regard. Such doubts are based on the view that the outnumbered minority give their consent to the empowerment of the majority only with the proviso that they themselves retain in the opportunity in the future of winning over the majority with better arguments and thus of revisiting the previous decision”. Cf. also Alexy (1992a, 237ff), Alexy (1996, 224) and Nino (1996a, 37).
Chnstiano (1996, 69).
Fiss (1996) argues that equality is distributional. Free speech is not only a matter of expressing our interests, but it is a something connected to the essential pre-conditions for collective self-governance. In this sense, public institutions should be worried about avoiding unnecessary limits on speech, but they should also be concerned with ensuring that all sides are present to the public. This means silencing some to give voice to others. This explains the title of the book and the following remark by its end (at p. 83), that we need to embrace the “ironic truth, that the state can be a friend and an enemy of speech; that it can do terrible things to undermine democracy but some wonderful things to enhance it as well”.
Ackerman (1993), Dworkin (1996c).
This is a major insight rendered explicit by Estlund (1997, 195): “I propose, as the counterpart of the idea of procedural fairness in cases where there is an independent moral standard for the outcome, the idea of Epistemic proceduralism: procedural impartiality among individuals’ opinions, but with a tendency to be correct; the impartial application of intelligence to the cognitive moral question at hand”.
Cf. Nino (1996a, 129), Estlund (1997, 196). As it is argued latter on, this is not so different from Raz’s normal justification thesis. See this chapter, fn 71.
Nino (1991b. 46). Nino (1996 a, 127)
Estlund (1997, 188) for a watering down of Condorcet’s theorem.
Cf. §§300–1. See also Nino (1996a) and Dworkin (1996a, 24–6).
Rawls (1964, 15): “[J)ustice of the Constitution is a judgment influenced by the chances of correcting its injustices”.
See § 3.
Ackerman (1989, 8)
Ródenas Calatayud (1996, 73).
Cf. §296.
Raz (1984, 131): “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”
Habermas (1995, 116) considers that Rawls fills the design of the original position with a considerable deal of substantive content because of the way in which it operationalises the moral point of view (this is related to the pristine goal of the construction, to solve the Hobbesian problem) and offers a counter-model in which “he kept the procedural conception of practical reason free of substantive connotations by developing it in a strictly procedural manner”. Habermas (1995, 117): “Rawls imposes a common perspective on the parties in the original position through informational constrains and thereby neutralises the multiplicity of particular interpretative perspectives from the outset. Discourse ethics, by contrast, views the moral point of view as embodied in an inter-subjective practice of argumentation which enjoins those involved to an idealising enlargement of their interpretative perspectives” Habermas (1995, 131) compares discourse ethics with Rawls’ theory of justice: “It can leave more questions open because it entrusts more to the process of rational opinion and will formation (…) I propose that philosophy limit itself to the clarification of the moral point of view and the procedure of democratic legitimation, to the analysis of the conditions of rational discourses and negotiations. In this more modest role, philosophy need not proceed in a constructive, but in a reconstructive fashion. It leaves substantial questions that must be answered here and now to the more or less enlightened engagement of participants, which does not mean that philosophers may not also participate in the public debate, though in the role of intellectuals, not experts”.
Habermas (1996a, 301): “The self of the self-organising community disappears in the subjectless forms of communication that regulate the flow of discursive opinion- and will- formation, in such a way that their fallible results enjoy the presumption of being reasonable”.
Habermas (1996a, 179): “Majority rule retains an internal relation to the search for truth inasmuch as the decision reached by the majority only represents a caesura in an ongoing discussion; the decision records, so to speak, the interim result of a discursive opinion-forming process (…) Hence, the dissenting opinion attached to the justification of a Supreme Court ruling, for example, is meant to record arguments that in a similar case might convince the majority of future panel judges”
Nino (1996a, 37).
Ely (1980).
Rubio Maríin (1998).
Nino (1991a, 115): “[L]iberal principles of justice take consent as the primary element for justifying a distribution of rights and obligations, benefits and burdens, and only when there is no such consent do they take into account other factors (…) If that consent is not present, because of deception, ignorance, or the mental state of the person in question, the other criteria of justice come into play, depending on how much love or fraternity there is among the parties (…) So, principles of justice are permanently in the background, not only legitimising the relationships based on consent but also providing substantive criteria which allow us to interpret just how friendly, disinterested, and loving those relationships are”.
See §§ 1–3.
See §§ 67–9.
See Alexy (1996).
See §§68–9.
See Alexy (1994a, pp. 131–57) and Alexy (1996).
See Habermas (1996a, chapter 3, especially at pp. 122–3).
Rawls (1964, 15): “[J]ustice of the constitution is a judgment influenced by the chances of correcting its injustices”.
Hart (1955, 61).
Rawls (1971, 112). Previous formulations can be read in Rawls (1964, 9–10): “If one thinks of the Constitution as a fundamental part of the scheme of social co-operation, then one can say that if the constitution is just and if one has accepted the benefits of its working and intends to continue on doing so, ad if the rule enacted is within certain limits, then one has an obligation based on the principle of fair play, to obey when it comes one’s turn. In accepting the benefits of a just constitution one becomes bound to it, and in particular one becomes bound to one of its fundamental rules: given a majority rule in behalf of a statute, it is to be enacted and properly implemented (…) The principle of fair play may be defined as follows. Suppose there is a mutually beneficial and just scheme of social co-operation, and that the advantages it yields can only be obtained if everyone, or nearly everyone, co-operates. Suppose further that co-operation requires a certain sacrifice from each person, or at least involves a certain restriction of his liberty. Suppose finally that the benefits produced by co-operation are, up to a certain point, free; that is, the scheme of co-operation is unstable in the sense that if any one person knows that all (or nearly all) of the others will continue to do their part, he will still to be able to share a gain from the scheme even if he does not do his parts. Under these conditions a person who has accepted the benefits of the scheme is bound by a duty of fair play to do his part and not to take advantage of the free benefit by not co-operating. The reason one must abstain from this attempt is that the existence of the benefit is the result of everyone’s effort, and prior to some understanding as to how it is to be shared at all, it belongs in fairness to no one” and Rawls (1969, 241): “A person is required to do his part as defined by the rules of an institution when two conditions are met: the institution is just (or fair), that is, it satisfies the two principles of justice; and, second, one has voluntarily accepted the benefits of the arrangement, or taken advantage of the opportunities it offers to further one’s interests”.
This interpretation of the principle of fair play can be traced back to Honoré (1987, 119ff, especially 122): “A citizen need not have chosen to become a citizen nor have made any promise, express or implied, to do so. Nor need he have voluntarily accepted any benefit from the state whose laws are in question. The duty applies to a reluctant and uncooperative as it does to the most active and prosperous citizen”
Rawls (1971, 112): “By the principle of fairness it is not possible to be bound to unjust institutions which exceed the limits of intolerable injustice (…) In particular, it is not possible to have an obligation to autocratic and arbitrary forms of government”. A similar argumentation in Rawls (1969, 240), where he argues that the question of the existence of a general obligation to obey the law based on fairness only makes sense in “a legally established and democratic authority”. In Rawls (1964, 5) this is associated with a legal system based on the rule of law (publicity of rules, similar treatment of similar cases and so on) and that is part of constitutional democracy (that implies equal citizenship, recognition of the freedom of the person, freedom of thought, liberty of conscience and political participation in the political process”
Cf. Rawls (1999a, 60): “The rights and duties so arising are special rights and duties in that they depend upon previous actions voluntary undertaken, in this case on the parties having engaged in a common practice and knowingly accepted its benefits. It is not, however, an obligation which presupposes a deliberative performative act in the sense of a promise or contact or alike”
If we assign to fair play a complementary role, the criticism addressed by Klosko to authors like Rawls and Simmons is correct. The latter consider that we can also be obliged on the basis of fairness in case that we fully consent to the benefits derived from social order. Under the present understanding of the role played by fair play, what is more relevant is the magnitude of the benefits provided. Moreover, this view is no longer open to the kind of criticisms made by Nozick (though it is far from clear whether his arguments bite even to Rawls’s understanding of fair play. Having said that, I doubt whether Klosko sees the role of fair play as I do. If he does not, then his argument (that is right under the present understanding of fair play) is not so convincing. For the sake of thoroughness, the reader should know that he supports the suppression of a direct reference to consent within the argument for fair play. However, he does so by means of limiting the breadth of the general obligation to obey the law to those legal systems entrusted with the provision of a very limited number of public goods (those characteristic of a minimal state a la Nozick) and conditioning it to the fact that such goods are worth their cost. Cf. Klosko (1998, 62). He argues that because the benefits provided by such schemes are non-excludable, individuals are no longer free to decide whether or not to receive them. Cf. Klosko (1989, 243). His strategy becomes clearly untenable when he pretends to extend the reach of the obligation. He argues that if the provision of very basic public goods is fair, the legitimacy of the provision of further goods is to be regarded as legitimate, unless there is proof to the contrary. This is quite ingenious, but a trifle too mechanical.
Cf. §9–11.
See, for example, MacCormick (1978, 74): “Adjudication implies running beyond the specific and determinate guidance that rules can give). See also Alexy (1989, 1), and in general, all treatises on legal argumentation.
That corresponds to the authoritative dimension of legal reasoning. Cf. Alexy (1998).
Cf. Dworkin (1986, 227): “According to law as integrity, propositions of law are true if they figure on or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice”
See, for example, Dworkin (1986, 72 and 251–2).
Cf. Weinberger in MacCormick and Weinherger (1986 chapter 1)
Cf. Alexy (1989, 1).
Alexy (1999)
Cohen and Rogers (1995).
Habermas (1996a, 169, 173, 300). It is worth quoting pp. 173: “The priority of laws legitimated in democratic procedures has the cognitive meaning that the administration does not have its won access to the normative premises underlying its decisions”
Cf. §199.
An application is to be found in the role assigned to statutory instruments and decree-laws in tax matters. Cf. §407.
Habermas (1996a, for example 39) takes from Parsons the idea that administrative bodies constitute a source of integration in modern societies.
Cf. §193.
Cf. §197.
Something which must also be taken into account by a democratic theory of tax law. Cf. §248–9.
Cf. §163.
Cf. §3855ff, §433ff.
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Menéndez, A.J. (2001). Justifying the General Obligation to Pay Taxes (3). In: Justifying Taxes. Law and Philosophy Library, vol 51. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9825-5_6
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