1. Insufficiency of Conceptions of Right
Rises in war expenses were the chief cause of financial difficulties of fiefdoms in the feudalistic economic system in the 14th and 15th centuries. It happened again in Austria in the 20th century. Under the similar situation, in the Han Dynasty the Emperor Wu commanded top court officials, Sang Hong-yang et al., to do everything they could to raise funds for his conquering ambition. The term of “ruler” does have its certain degree
1 Schumpeter (1918) also believed, the significance of taxation could no longer cover the concept of the state entirely. On the contrary, the concept of taxation grew more complete from the development of the concept of the state. See the Japanese translation for details, p.35.
2 This social function of taxation, especially in Germany, may have been under the influence of German public finance at the time. The “State socialism” (Staatssozialismus) on expansion of state functions by A Wagner (1835-1917) was the most well known; Hanato Ryuuzou(花戶龍藏) (1952), Theory of Public finance, p.101 onward.
3 Schumpeter’s idea about the taxation-state relation, see Schumpeter (1918/1996), p.344; Schumpeter
of commonality in both China and the rest of the world throughout history.
In reality, when observing closely, the economic systems of China and Western Europe seem to have been the same.1 Yet when considering from the cause and effect level, it is difficult to not blame the financial plight of a state (or kingdom or dynasty) on the leader’s inappropriate fiscal policy. Again from the debate in 《Discourse on Salt and Iron》 we cannot help but question if it was possible to prevent financial difficulties from happening by restricting the will or behavior of the leader. Whether this restriction of the leader’s will or behavior still belongs to the domain of jurisprudence also requires explanation.
However, this paper believes, despite the inescapable domination of state power, how to make taxpayers to still be able to enjoy “minimum life protection” 2 and avoid excessive violation from taxation, compared to the aforementioned, will have more practical benefits in jurisprudential examination. As a matter of fact, in an economic system where private interests provide the driving force, it is really hard to imagine a
1 [Ho] (2005) even thought from the development process in the China before the Emperor Wu of the Han Dynasty and the Western Europe since the Middle Ages the pattern of human economic progress can be deduced, meaning in both cases the development process went from “feudal society mercantilism
temporary mercantilism capitalism.” See [Ho] (Vol.I), Linking Publishing(聯經), pp.3-4.
2 This means the state function of providing the condition for living “without necessary worries.” See later elaboration on “Rights Protection Centered on Taxpayers – Minimum Protection for Living without Unnecessary Worries”
public obligation that is not only beyond the burden an individual is willing to take, but also endangering to the basic living of the individual, yet being highly justified at the same time. The paradox is, as it is difficult to be sure of the limit of this burden, the state, in its pursuit of sufficient financial resources, has no choice but turns and endeavors in stressing the justifiability of “taxation” and the justification in the “tax obligation.”
2. Time for application of moral perspective – “Subsidiary Principle” as vehicle
To continue, “the constitutional limits of taxation” actually are the response to the default value of the proportion of “fundamental values of people” and “people’s obligations for social solidarity” in the constitution. Nevertheless, this defaulting often has to be adjusted in line with changes through time and evolvement of human rights concepts. Using the experience of Germany as an example, as a result of the progress from1 a liberal state of rule of law to a social state of rule of law, the responsibility of the state was no longer limited to the missions of a night watchman state but also included the function of looking after the people. The move from a formal rule-of-law
1 For related discussion and response of taxation principles when facing such transformation, see [Fuke]
state to a substantial rule-of-law state enabled the liberal-rights-centered fiscal constitutional perspective to gain wider support1 – that is, the establishment of the minimal survival standard and the upper limit of the halving principle in overall tax burden in the constitution.2
Here we emphasize the response of the principle of subsidiary (Subsidiaritätprinzip) of a state. When discussing this principle, it should not be forgotten that this principle has the social function of the protection of freedom and has to be evaluated from the function-accordability and effectiveness in the process of social development. The acts of state cannot force intervention by citing public purposes as an excuse. The applicability of the principle of proportionality has to be taken into account and the
state can intervene only when the society is incapable of achieving on its own3. Still,
in light of the coming of era of social state of rule of law, social demands to the state increase by the day and public affairs grow in complexity. Under inevitable expansion
1 See [Taniguchi] (2007), zeihouniokerujiyutobyodo, Tax Jurisprudence 546, PP.210-211. For discussion on the halving principle, refer to Okuya, kazeinofutanntojyogen, Tax Jurisprudence 558, pp.23-42.
2 See P. Kirchhof, Besteuerung im Verfassungsstaat, 2000, S. 31f.
3 [Gee], the dualism of state and society and its constitutional significance, in Gee, State Theory and State Law, 1997, pp.38-39. According to Gee, there are two meanings for the state: first, the state has the obligation to prevent the abuse and monopoly of authority in the social system (such as monopoly and oligopoly) and to maintain neutrality against social forces (such as prohibition of discrimination and power abuse, and administrative neutrality) to ensure economic, cultural, political and art bodies to exercise their functions; secondly, the state should practice self-control when intervening complex social organization systems, and refrain from damaging their original stability, such as taking precautions when applying control measures to market prices. The self-control of the state is a prerequisite for individual and social freedom; stepping over the line shall lead to deprivation of individual and social freedom (Rupp, Die Unterscheidung von Staat und Gesellschaft, in HBdSR, Bd.I 1987, §28, Rn. 52, quoted from Gee, supra text, p.39, note 81.)
of state duties, the subsidiary character of the state not only should not turn toward active intervention in private affairs as a result, but also should, as intersections of state and private affairs increases, heighten the alert to prevent ensuing possibilities of new forms of abuse of public authority and perform constant introspective review according to the principle of proportionality. Only so, would the subsidiary character of the state have more positive meanings. What’s more, we even tend to believe that the principle of subsidiary shall be equipped with the function of values-complementing in the constitutional level, and helps to search alternative grounds for normality on condition that the conceptions of “rights” no longer serves to embrace the morality to be protected.