Principles-Based Legislation in Context: A Dworkinian Perspective
27 Pages Posted: 31 Oct 2018 Last revised: 23 Feb 2019
Date Written: October 7, 2018
Principles-based legislation (PBL) is sometimes presented as an alternative regulatory instrument to counter aggressive tax planning, as a remedy for the failure of rules-based legislation. Rules are almost sacred in (tax) law-for rules are thought to secure legal certainty (and equality) for citizens. Nonetheless, a system of pre-established rules has its drawbacks because one can play by the rules but also bend the rules. This a well-known reality in tax.
Counteracting tax avoidance is one of tax authorities’ major concern nowadays. However, there are various instruments in the legislature’s toolkit. Principles-based drafting is but one of them. Here we will deal with fictions, standards, general anti-avoidance rules, before turning to PBL. This paper will investigate the meaning of these instruments from the perspective of (legal) principles as advocated by the legal philosopher Dworkin. Fundamental legal principles embody the dimension of morality (justice, fairness) in law. They are regulative ideals that make morally sound positive law possible. They constitute a normative framework for legislation: legislation should be aimed at realizing these principles.
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