Not Argued from But Prayed to. Who's Afraid of Legal Principles?
eJournal of Tax Research (2014) vol. 12, no. 1, pp. 185-217
33 Pages Posted: 2 Jul 2014 Last revised: 5 Jul 2014
Date Written: May 12, 2014
What is the use of legal principles in taxation? And do they have anything to do with morality? These are the main questions this article addresses -- focusing on the theoretical and practical role of fundamental legal principles on the European continent.
It is argued that principles indeed embody the dimension of morality (justice, fairness) -- other than policies. These abstract principles are to be distinguished from rules, which contain more specific standards for behaviour. Moreover, law-making and law-applying institutions are not the authors of legal principles, for they find the principles in the law. Because principles are external standards to law-makers, the body of rules established by law-makers should be in conformity to fundamental legal principles. Hence, legal principles -- embodying the ‘internal morality of law’ -- function as essential criteria of evaluation. Furthermore, these regulative ideals can be entrenched in a broader philosophy of law which accounts for some of their characteristics -- such as inconclusiveness. Legal values and principles connect the legal system with the moral values and principles prevailing in society; the former function as a kind of filter. Thus, legal principles are vehicles in the movement back and forth between legal values and legal rules. Abstract principles in turn cannot be applied directly unless they are specified and elaborated in rules.
Next, this theory is put into practice. Some examples in the field of tax law are discussed in order to show the added value of the principle-based method of legal reasoning which can take account of varying circumstances. It will be shown that judges actually make use of principles, for example as the normative basis for rule-making. Moreover, it will appear that if it is not (yet) possible to establish a rule, priority principles may be developed to guide law-making. Thus, these examples show some aspects of principle-based reasoning in tax law. The practice of tax law reflects a theoretical approach which conceives of law as a system of rules based on coherent set of moral principles.
Keywords: Legal values and principles, internal morality of law, mid-level principles, rules, legal positivism, Ronald Dworkin, Gustav Radbruch, Lon Fuller, Paul Scholten, Claude Lefort, Robert Alexy, tax law
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