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Elkins: Taxation and the Terms of Justice

David Elkins (Netanya College School of Law, Israel; Visiting Professor, SMU) has published Taxation and the Terms of Justice, 41 U. Tol. L. Rev. 73 (2009).  Here is part of the Introduction:

This article proposes a taxonomy of taxation and posits that taxes need to be classified into taxa, each of which serves a particular and distinct aspect of justice. Effective discussion of tax policy requires that each taxon be identified and addressed independently. When analyzing one taxon, the goals of other taxa need not, and indeed must not, be considered. …

Part II introduces, examines, compares, and contrasts the four taxa. This part begins by asserting that each taxon promotes a distinct type of justice, and concludes by demonstrating that the differences among the taxa are primarily a function of whether they aim to perfect or, on the other hand, to modify the market distribution, and whether they view a taxpayer's acquisition of wealth as legitimate. Part III turns to the difficulty, in practice, of differentiating between the two major taxa–commutative and distributive taxation–when what is ostensibly a single tax turns out, upon closer examination, to be an amalgamation of both. Separating such a tax into its constituent parts is not simple task. Nevertheless, it is a prerequisite to applying the appropriate terms of justice. Part IV summarizes the findings.

This article is not normative in the sense that it does not argue for a particular type of tax or a particular level of taxation. It remains neutral in that regard. Rather, its purpose is to present a framework for an effective discussion of tax policy.


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