Abstract
Any liberal theory that would take seriously the question of equality before the law is bound to engage with discrimination-related matters, and so long as one is a liberal one should oppose all discrimination coming from the state. This, however, may be a double-edged sword since many classical liberals have quite readily opposed progressive taxation by invoking its discriminatory nature. Some liberals will therefore conclude that one cannot establish different tax brackets, lest taxation be illiberal. This paper endeavours to refute this assumption. Progression may be compatible with the classical liberal concern for the rule of law, provided legislative discretion on tax-related matters is duly limited by the principle of generality, as well as by a certain standard of reasonable lawmaking. Through a careful distinction between four concepts of differential treatment, this paper demonstrates that progressive tax arrangements do not necessarily discriminate against the well-off, and that it can efficiently fulfill some legitimate classical liberals objectives.
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References
Aristotle. (2011). Nicomachean ethics (Robert C. Bartlett & Susan D. Collins, Trans.). Chicago: Chicago University Press.
Bastiat, F. (2011). The law. In The Bastiat Collection. Auburn: Ludwig von Mises Institute.
Buchanan, J., & Congleton, R. D. (1998). Politics by principle, not interest: Towards nondiscriminatory democracy. Cambridge: Cambridge University Press.
Cicero. (2008). De legibus (The Laws) (Niall Rudd, Trans.). Oxford: Oxford University Press.
Congleton, R. D. (2007). On the feasibility of a liberal welfare state: Agency and exit costs in income security clubs. Constitutional Political Economy, 18, 145–159.
Dicey, A. V. (1915). Introduction to the study of the law of constitution (8th ed.). London: Macmillan and Co.
Epstein, R. (1985). Takings: Private property and the power of eminent domain. Cambridge: Harvard University Press.
Epstein, R. (1986). Taxation in a Lockean world. Social Philosophy and Policy, 4(1), 49–74.
Epstein, R. (2002). Can anyone beat the flat tax? Social Philosophy and Policy, 19(1), 140–171.
Epstein, R. (2009). The Reflections and Responses of a Legal Contrarian. Tulsa Law Review, 44(4), 647–675.
Epstein, R. (2014). The classical liberal constitution: The uncertain quest for limited government. Cambridge: Harvard University Press.
Friedman, M. (2002). Capitalism and freedom. Chicago: The University of Chicago Press.
Fuller, L. L. (1969). The morality of law. New Haven: Yale University Press.
Gowder, P. (2014). Equal law in an unequal world. Iowa Law Review, 99, 1021–1081.
Hayek, F. (1978). The constitution of liberty. Chicago: University of Chicago Press.
Hayek, F. (2007). The road to serfdom. Chicago: University of Chicago Press.
Hayek, F. (2013). Law, legislation and liberty: A new statement of the liberal principles of justice and political economy. London: Routledge.
Heath, J. (2014). Morality, competition, and the firm: The market failures approach to business ethics. Oxford: Oxford University Press.
Lister, A. (2013). The ‘Mirage’ of social justice: Hayek against (and for) Rawls. Critical Review, 25(3–4), 409–444.
Melkevik, Å. (2016). Four concepts of rules: A theory of rule egalitarianism. European Journal of Political Theory. doi:10.1177/1474885116653366.
Mill, J. S. (1909). On the General Principles of Taxation. In Sir W. J. Ashley (Ed.), Principles of political economy. London: Longmans, Green and Co.
Minow, M., & Spelman, E. (1990). In context. California Law Review, 63(1597), 1629–1631.
Mises, L. (1998). Human action: A treatise on economics. Auburn: Ludwig von Mises Institute.
Moreau, S. (2010). What is discrimination? Philosophy & Public Affairs, 38(2), 143–179.
Paley, W. (1860). The principles of moral and political philosophy. New York: Harper & Brothers.
Posner, R. A. (2011). Economic analysis of law (8th ed.). New York: Wolters Kluwer.
Rawls, J. (1999). A theory of justice (Revised ed.). Oxford: Oxford University Press.
Ross, A. (1974). On law and justice. Berkeley: University of California Press.
Simons, H. (1948). Economic policy for a free society. Chicago: University of Chicago Press.
Smith, A. (2003). The wealth of nations. New York: Bantam Classic Edition.
Zimmerman, C. C. (1932). Ernst Engel’s law of expenditures for food. The Quarterly Journal of Economics, 47(1), 78–101.
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Melkevik, Å. No progressive taxation without discrimination? On the generality of the law in the classical liberal tradition. Const Polit Econ 27, 418–434 (2016). https://doi.org/10.1007/s10602-016-9222-x
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DOI: https://doi.org/10.1007/s10602-016-9222-x