Dr Ira Lindsay

The benefits theory of tax fairness was the dominant approach to tax justice until the late nineteenth century. This paper examines the reasons for the rejection of the benefits principle in the nineteenth century and the evolution of benefits theory in the twentieth century in response to this criticism. It uses this historical inquiry as a launching point for re-evaluation of the prospects for benefits theory. Benefits taxation has a number of advantages. As an ethical claim, it appeals to intuitive principles of fair cooperation. As a rule of procedural justice, it tends to protect against oppressive tax schemes. Although benefits theory has the resources to respond to some of the most historically influential criticisms, it faces additional challenges. These include specifying the baseline against which benefits are to be measured and fair treatment of taxpayers who take a public-spirited view of government spending as opposed to those who are mainly concerned with their private advantages.

Increasing cross-border mobility of workers makes the binary distinctions between resident and non-resident dubious as a normative matter and open to manipulation as a practical matter. An alternative to comprehensive income tax systems is a modular tax system that raises revenue through multiple taxes with different criteria for liability. The rise of modular tax systems allows for a more finely calibrated approach to taxing cross-border workers and for rethinking the relationship between citizenship and taxation in two respects. States could levy a modest tax on expatriates maintaining their citizenship while living abroad. Resident citizens might pay additional taxes that support benefits not available to non-citizens. The two proposals complement each other but have very different feasibility conditions. Linking taxation and citizenship in this way does not reflect an inappropriately mercenary approach to civic life, but instead mitigates unfair advantages enjoyed by internationally mobile workers.

Two rival approaches to property rights dominate contemporary political philosophy: Lockean natural rights and egalitarian theories of distributive justice. This article defends a third approach, which can be traced to the work of David Hume. Unlike Lockean rights, Humean property rights are not grounded in pre-institutional moral entitlements. In contrast to the egalitarian approach, which begins with highly abstract principles of distributive justice, Humean theory starts with simple property conventions and shows how more complex institutions can be justified against a background of settled property rights. Property rights allow people to coordinate their use of scarce resources. For property rules to serve this function effectively, certain questions must be considered settled. Treating existing property entitlements as having prima facie validity facilitates cooperation between people who disagree about distributive justice. Lockean and egalitarian theories endorse moral claims that threaten to unsettle property conventions and undermine social cooperation.

This chapter argues that the importance of trust between actors within the legal system has important implications for legal method. Governance by law is a conventional practice. Conscientious officials prefer to follow the law if other officials do so as well, even at some cost to their other aims. But they are unlikely to do so when the law conflicts with their other goals unless they believe that officials with differing moral or political views will also follow the law in similar circumstances. For this reason, trust between actors in the legal system plays an important role in creating and maintaining the rule of law. This has implications for both legal interpretation and institutional design. In general, we should prefer legal methodologies that increase agreement about the content and proper application of the law independently of any epistemic considerations. Theories of statutory interpretation should therefore be chosen in part on the basis of how much agreement they generate between different interpreters. Different methodologies may be preferable in different areas of law. Textualist methodology may yield greater agreement in areas of law in which pervasive moral disagreement generates stark differences in legal intuitions, while purposivist methodologies may be preferable in areas of law in which there is wide convergence in judgment about the underlying normative issues. The result is a modest relativism about interpretive method.

Tax avoidance disputes present a conflict between preventing tax schemes that frustrate public policy and the rule of law. When considering the connection between taxation and the rule of law, it is helpful to distinguish between two aspects of the rule of law. The narrow-scope rule of law concerns whether disputes are decided according to legal norms that are general, prospective and impartial. The wide-scope rule of law concerns whether the government rules through law or through some extra-legal method and whether the government respects existing legal entitlements. Although closely connected, the two aspects of the rule of law are distinct: a violation of the rule of law in one sense does not necessarily have significant implications for the aspect of the rule of law. Tax disputes implicate both aspects of the rule of law. Tax adjudication violates narrow-scope rule of law when it ignores established law, appeals to legal norms that are not known in advance or renders judgments on grounds of personal partiality. Taxation violates wide-scope rule of law when used to expropriate politically unfavoured parties, confer benefits on politically favoured parties, or regularly shift tax burdens in arbitrary and unpredictable ways. This understanding of the rule of law does not yield any straightforward argument in favour of more formal methodologies of statutory interpretation or against anti-abuse rules. If the applicable legal norms are known in advance, it is not a violation of the narrow-scope rule of law to decide cases according to principles rather than rules or economic substance rather than legal form. Less formal, more purposive forms of adjudication tend to rely more on sound judgment by judges. In a legal system with a skilled and impartial judiciary, anti-abuse rules are not inherently threatening to the rule of law. They are less desirable in polities with wide-scope rule of law deficits. When tax disputes are highly politicised and the impartiality of the tax authorities and judiciary is open to question, it may be preferable to adopt more formal methods of adjudication that rely less on abstract reasoning about tax policy and that are easier to monitor for signs of bias. Tax law methodology should be calibrated to political context. Approaches that might be best suited for politically stable polities with highly skilled impartial judiciaries might be ill-suited for other contexts.

Horizontal equity is the principle that people who earn equal income should owe equal tax. It has gotten a bad name. Although horizontal equity remains a textbook criterion of tax fairness, scholarly literature is largely hostile. Scholars ranging from the legal theorist Louis Kaplow to philosophers Thomas Nagel and Liam Murphy question its conceptual coherence and normative significance. The crux of the case against horizontal equity is that it seems irrational to worry about the relationship between pre-tax income and tax obligations rather than determining tax policy in light of what our best theory of distributive justice tells us is the best post-tax outcome. I argue that horizontal equity is best understood as a compromise principle for people who disagree about deeper principles of distributive justice. The debate over horizontal equity reflects two distinct ways of thinking about fairness. One approach starts with principles that specify a just distribution of income, resources or utility and uses these principles to derive appropriate tax laws. A second approach analyzes fairness norms as stable and mutually advantageous compromises between people who have conflicting interests and differing moral commitments. Proponents and opponents of redistributive taxation can agree that at any given level of redistribution they will each be better off if taxes are horizontally equitable. Horizontally equitable taxation can thus prevent rent-seeking and ideological conflict over tax policy from generating a wasteful patchwork of narrow taxes and tax subsidies. Observing horizontal equity may be unimportant when people agree on ideal principles of justice and the relevant empirical facts. But under more usual conditions of deep moral and empirical disagreement over tax policy, treating pre-tax income as a normative baseline can prevent conflict over distributive questions from leading to wasteful and inequitable tax policy.

When the Soviet Union collapsed, many observers hoped that decollectivization would improve the infamously inefficient Soviet agricultural sector and raise collective farm workers out of poverty. The initial results of market reform in Russian agriculture were a severe disappointment in both respects. Under Putin, Russia finally allowed agricultural land to be bought and sold. The effects of this latest reform neither met the expectations of its supporters nor realized the fears of its opponents. Russia's experience with land reform suggests that while private ownership of farmland may offer significant advantages, successful land reform requires much more than the creation of legal rights. This Article explores the role of property law in post-Soviet Russian agriculture and charts the development and effect of land markets in rural Russia, revealing broad implications for the effects of land privatization on agriculture, the barriers to creating well functioning land markets, and the significance of property law for economic development.

Tax policy must address three fundamental questions: what is taxed, who is taxed, and how tax burdens are allocated among taxpayers. This chapter examines the ethical dimensions of these questions, including the merits of income taxation, consumption taxation and Pigouvian taxes, the tax treatment of families and of corporations, the justification of progressive taxation, and tax competition. It considers theories of tax fairness grounded in taxpayers’ ability to pay and in the benefits taxpayers receive from government as well as the perspectives of utilitarians, egalitarians, and public choice theorists.