1. Comparability—commonalities among tax moralities
I suppose, then, that he’d need time to get adjusted before he could see things in the
world above.
516 a, Republic VII.
Historically speaking, Chinese society turns out to be quite different from western ones, despite several massive communications between the two civilizations, each has its own development. More interestingly, however, in the course of their respective journey of development did they encounter similar tasks to be resolved. The question we are
concerned about is a good example in the area of jurisprudence.
Both facing enormous expenditure in the warfare to be financed, how state maximize its profits from its economic system were ascribed to the question of the choice of its economic system. However, since the decision of economic system brings in an overall impact on people’s economic life, such decision, also falls in the category of
constitutional jurisprudence, especially in its modern significance.
Despite that constitutional jurisprudence and public finance are different after all, the values and thoughts underlies themselves respectively, which can not be taken as identical; what is certain is that the question of “whether the state to intervene the market” seems to be the main concern, which appears both in Crisis as well as in
Discourse.
2. Receptionability: Intrinsity vis-à-vis Reception
At first, he’d see shadows most easily, then images of men and other things in water,
then the things themselves.
516 a, Republic VII.
By Crisis, there exists a limitation of taxation lying between state (here referring to tax systems, i.e., tax state) and people, bringing doubts to the invincibility of state power. In a constitutional state ruled of law, the rights of people (here referring to tax payers) are valued higher than state power (here referring to tax payers) and can thus restrain the power of the state. Therefore, we may be curious of the legitimacy to restrain the state.
After all, what is the groundings of such legitimacy of the state? Does it originate from the values developed in our tradition and culture? Or does it come from transplantation abroad?
By Discourse, we tend to be able to jump out of a westernized framework of theories of limitation and directly touch upon tax obligation itself. Combining the ideological debates during the Salt and Iron Meeting with the social contexts at the time, we found a nexus connecting power of taxation and obligation to pay tax in traditional China. And
it is the indistinctiveness of morality (De) and law (Fa) that makes the
argumentation of the legitimacy of obligation to pay tax a hard nut to crack.
In other words, if the reception of law refers to mere transplantation of institutions and regulations, then such reception amounts to laying a whole setting of social values
directly on top of an originally different one. Therefore, it is a prerequisite of a mutual-understanding between disparate values that these values could be mutually beneficial. However, being unsure of the possibility of mutual-understanding but insist on the exaction of certain values may contribute to people’s ignorance of the groundings of the received system thus to the ignorance of the legitimacy of obeying such system.
Common logic—the righteous-beneficial differentiation
We tend to apply the separation of rule and principle in the western legal theories to examine the relations between I ( righteuousness) and Li (benefit). We are of the opinion that choice of value and prioritization deducted from the confrontation of principles and competing of rules, respectively, are unexpectedly in accordance with the righteuous-benefit differentiation, which penetrates through the thoughts of moral economy in traditional China, indicating commonality in the moral sense.
The issues in the two debates, both focusing on the relations of state and economy, intending to find a borderline between state and people in its own historical and cultural context so as to reach a harmony of coexistence. At first glance, both texts may have nothing in common. However, we believe, it is this very irrelevance that makes possible
our pursuit of a commonly-recognized moral grounds which exists in its own respective context.
3. Mechanism for Communication: being understood as premise
Of these, he’d be able to study the things in the sky and the sky itself more easily at
night, looking at the light of the stars and the moon, than during the day, looking at the
sun and the light of the sun.
516 a, Republic VII.
Concretely speaking, how can the tax payer’s value judgments be presented in a form of understandable way is the first question to be tackled. Here, building an objectively-existing institution is of much help. The word “objective” indicates the outer world from one’s inward psychological minds, and is opposite from “subjective”, meaning individual’s mentality.
In addition, the so called “institution” is a mechanism, where information could be gathered as long as members are aware of its functioning principle. Therefore, members are able to express their ideas through the translation (or transformation) by means of
communication rules. Therefore, in a society where people cohabits, institution is necessary. To further, when taxes are for the purpose of the maintenance of the society thus claiming its public character, it may as well necessary for the institutionalization of taxation.
However, institutionalization can not be realized without rules and principles. In detail, with a certain set of logic (no matter daily language or subsumption in jurisprudence), the organization of the institution serves to a certain degree of understandability thus possibly reaches predictability.
In a state ruled of law, people still being the ones to be understood, but the media through which understanding is reached are mainly legal rules. In other words, by means of legal rules, how to enhance understandability in turn making one’s thoughts
communicable, becomes issues of institutional design, namely, the ruled-of-law state.
Understandability—foreign law and domestic law
Besides, speaking of the reception of foreign law, it can not be discussed without the
understanding of foreign law. For the enforcement of the received law might face
difficulties if the laws could not make themselves understood. However, to enhance understandability, people must be ensured to understand. Therefore, the question becomes—how to understand.
Moreover, if reconsidering our own “inherent law”, it also needs to be understood never the less. However, the understanding of inherent law, compared with “received
law”, seems to have higher feasibility.
4. Analyzability: taxpayers’ value judgments
Finally, (……), he’d be able to see the sun, not image of it in water or alien place, but
the sun itself, in its own place, and be able to study it.
516 b, Republic VII
In a modern state ruled of law, it not only becomes a tool of social regulation, but as well serves as a media of interaction among people in the society. Therefore, pratical tax laws, which are closely clung to daily life, also fall in this media category.
Simply put, legal issues may enter daily conversational topics and become something
thought by everyone rather than restricted to certain group of professionals. For example, it may be possible for a tax payer to have an understanding of practical legal rules so as to all kinds of tax plannings just like a jurist in a jurist way.1 However, likewise, when tax payers are mapping out tax plannings, they shall as well be required that their tax arrangements be conform to the ideal of tax equity required in the constitution.
The question we are to raise is that whether it is possible to analyze all kinds of value judgments made by tax payers. In other words, from the perspective of taxation, if the tax arrangements made by tax payers are to no possibility of being understood, thus impossible to analyze, then, let alone their predictability.
For the question above, we are of positive opinion but reserve a conservative attitude towards the validity of the postulate of question. That is to say, presuming that analyzing subjective minds of tax payers contributes to a good understanding of the motives of tax payers’ behavior, it doesn’t follow that these analysis leads to predictability of their behavior.
1 This deduction originates from the interpretation of Perelman’s concept of value judgment in [Segawa]
As for our proposition of an integration of the righteousness(I)-beneficial(Li) differentiation in traditional China into the present received legal system, we still believe it effective.
5. Foreseeability
And at this point he would infer and conclude that the sun provides the seasons and the
years, governs everything in the visible world, and is in some way the cause of all the
things that he used to see.
516 b, Republic VII
The behavior of tax payers are the outward forms of their preferences. If these behaviors are considered to be a benefit-based thinking pattern—namely, measures taken are conducive to the fulfillment of the purpose1—, the predictability of such behavior is high. For example, if a tax payer only act according to the minimization of tax burden, then it is reasonable for the tax payer to choose the easiest approach to reach his/her purpose. In turn, with the thinking of benefit-oriented decision making, either tax payers themselves or the tax state could predict his/her behavior roughly to take precautions
against or to be used for policy orientation.
However, neither do all the behaviors from tax payers count on benefit-oriented basis (or relies on his/her preferences), nor do all their behavior guided by tax minimization.
Tax payers may act to self-realization which might not be taken as benefit-oriented based. Actually, we should even say that a behavior aiming at tax minimization is supposed to subordinate to one’s self-profiting motivation. In other words, the reason why tax payers seek after tax minimization might be that they are taken captive by the reality of the coexistence of tax and capitalism, be it their unawareness of it or their being stuck in social reality.
On the other hand, even jumping out the framework of capitalism, the purpose of tax payer’s behavior should not be (and actually difficult to) examined by merely the self-interest factor. Since that one’s subjective preference are constituted or mixed by various kinds of values one recognized, and that tax minimization being only one part of the various kinds of values, technically speaking, fails to perfectly predict tax payers’
inclinations. Thus, to mitigate the confrontation between received law and inherent law, in terms of tax law, all the main value judgments underlying tax payers’ behavior should mostly be considered. And the prediction of individual’s value judgments is certainly no
easy task.
However, with the arguments in the above, we still find high predictability from the value-based thinking pattern. Reasons are language communicability and dialectic logic.
The former explains the communicability between different legal systems, the latter indicates commonalities in the exercise of dialectic logic in the process of value judgment in the respective contexts, which is similar to the righteuous-beneficial differentiation. Therefore, the motive in taxpayer’s behavior still carries predictability, even though it is based on some value-judgment other than profit-maximization.