Legal Certainty: A Matter of Principle

Abstract

In this contribution, retroactive tax legislation is viewed from a wider perspective, viz., the change of the body of (tax) laws in the light of the human need for (legal) certainty. The main problem addressed was the question: which norms should guide the legislator willing to change the body of tax laws? These norms regard the legislator’s use of rules, i.e., introduction, amendment and abolishment of legal rules. Rules, legal rules included, play a quintessential role in the human need for certainty. Law is one of the domains in societies through which we try to defend ourselves against uncertainties in the behavior of others, government included. Legislative rules attaching legal consequences to taxpayers’ actions guide and direct taxpayers’ behaviour. Thus, taxpayers can calculate their tax liability and predict the tax administration’s collecting behaviour. Taxes constitute an interference with taxpayers’ liberty. The more taxes are levied and the higher the tax burden, the more taxpayers need to plan their fiscal obligations. Established laws which offer certainty are a great security for the liberty of the taxpayers, for lack of certainty in tax legislation may leave them in the dark with regard to their fiscal rights and obligations.

Thus, legal rules enable taxpayers to cope with uncertainties involved in the levying of taxes. Here, it is argued that the tax legislator’s (retroactive) change of rules should be guided by legal principles. The legislature should consistently balance principles in order to achieve integrity in legislation. Legal principles offer guidance as to the boundaries of legislative changes, the principle of legal certainty – and its aspects, all conceptualized as (sub) principles – being one of the major principles. The principles of legal certainty each entail specific demands on the use of legal rules, which may point in divergent directions. Then, the competing principles at hand ought to be balanced. Thus, all of these different aspects of the principle of legal certainty are to be used as principles of proper lawmaking. By using these legal principles, the legislator takes the ideal of integrity in law seriously.

Keywords: Aspects of legal certainty, retroactive legislation, conceptions of the rule of law, command theory of law, Fuller, tacit reciprocity, Dworkin, tax law