18 July 2012

Kant, Law Schools and the ATO

Amid brouhaha about the carbon tax it is interesting to read Gary Banham's 'Kant & the Ethics of Taxation' in 13(3) Journal of Accounting, Ethics & Public Policy (2012),  a refreshing change from the aridity of tax scholarship in Australian law schools.

Banham comments that -
The discussion of the normative basis of taxation tends to fall into two parts with one part concerned with the possibility of justifying taxation as such and one part concerned with specific taxation policies, particularly with the question of the ethical ground for redistributive forms of taxation. There is a third type of discussion that is occasionally also engaged in, which concerns the justifiability or otherwise of principled resistance to taxation, which latter concern is a specialized part of the theory of civil disobedience. 
I will touch on all the first two elements of the ethical discussion of taxation in this article but there is a question, which is prior to any of them in principle although it is rarely raised. This is the question of the relationship between discussions of taxation, however conducted, and ethics as a generic inquiry into standards of justified conduct. The general absence of this question is part of the tendency of social and political theorists to fail to provide an account of the relationship of political institutions to ethics. It is, however, an important part of Kant's philosophy of right to establish a ground on which the question concerning what it is that is right is related back to supreme governing principles of ethics. Further, it is this specific focus of Kant that enables recourse to his theory in a way that promises a unified approach to the more specific questions raised at the beginning of this paragraph. 
If these considerations indicate a rationale for looking at Kant's views on taxation they also show a need to place his views within the wider context of his ethics and in so doing to provide the basis for a philosophical approach to taxation that relates it carefully to foundational questions of political theory. In this article I will endeavour to chart a course between Kant‟s own theory and contemporary interpretations of it. 
The interpretations that are current in the secondary literature either begin by moving directly from foundational ethical principles to an account of taxation, incorporating thereby Kantian insights into a wider theory that is only partially Kantian or they refer to the primary Kantian texts on taxation but for purposes that are not clearly those which Kant himself had when he explicitly discussed taxation. The structure of this paper will be dictated by a response first to some of these contemporary readings prior to providing a more detailed response to the specific considerations that Kant himself is concerned with, both in his philosophy of right and in the limited, but revealing, discussion he especially provides of taxation. Subsequently I will provide prospectus for an account of how Kant‟s view of taxation is connected to contemporary disputes concerning whether redistributive taxation is philosophically justifiable. 
In concluding Banham states, after discussion of Nozick and Rawls, that -
I want to return to the key methodological innovation in Kantian ethical theory, an innovation that is replicated at the level of the philosophy of right. This is of the priority of the right over the good. Kant‟s treatment of questions of public policy interest is in terms of a philosophy of right that we have seen to be based upon a universal principle that refers to the conditions of justifiable coercion through reference to mutuality of conditions of free action. 
This basic reference to the conditions of free action is one that we find constitutes the possibility of there being a civil condition and it is in this condition that we have found there to be obligations of the citizenry, especially the wealthy, towards the commonwealth that has enabled them to thrive. In putting the matter this way Kant effectively reverses a great deal of the debate that surrounds the justification of taxation. 
Murphy and Nagel in their work on taxation refer to what they term “everyday libertarianism” which is founded on the following basic assumption: “pretax distribution of material welfare is presumptively just” and “the question of justice in taxation is therefore properly a question of determining what is a fair distribution of sacrifice as assessed from that baseline”. This “everyday” assumption is quite different to the structural way in which Kant examines right. Rather than taking a set distribution as good and then determining what is right with regard to it, Kant rather sets out an elaborate description of the conditions of what is right and then assesses how distribution of property and taxation of it can conform to these conditions. 
So the set pattern and distribution of wealth does not have a presumptive validity in the first instance. Rather, the way in which material wealth is distributed is one that ensures free action in structured conditions of right, entails distributive effects that the state can adjust in ways that reflect the general will as represented in the legislature. 
It is the legislature, in its conformity with principles of right, which determines the justice or otherwise of the distribution of income, property and assets, and it is the task of the legislature to review this in relation to the generic standards of right. One of the constraints on the legislature is to ensure that “decency” is maintained through the provision of the police power to prevent the importunity of the poor but, balanced with this, the legislature also has the job of taxing the wealthy in order to provide means for those unable to help themselves. 
This balance is part of the priority of the right over the good as the “good” that wealth provides is not structurally one to which there is a set entitlement on behalf of the wealthy even though their accumulation of it has been in accord with right. The wealthy owe a debt to the civil condition generally as it is the base line that allows for their accumulation and it is to the civil condition that they repay their debt in taxation. 
Taxation, whilst experienced as a burden by those from whom it is extracted, is a device required by the state in order that there be conditions of right. Such conditions of right require maintenance and provision and have to be, once instituted, maintained in perpetuity. 
A rightful way of ensuring this is to make it possible that all citizens are supplied with the basic freedom that allows their survival, both physically and rightfully. This is ensured through the system of taxation and this system itself, as part of the basic rightful condition, has a presumptive validity over and above the material good that citizens themselves prize. Hence its justification precedes and makes possible the manner in which citizens are given lee-way to pursue their good and is structurally prior to it.