The Discursive Failure in Comparative Tax Law
Omri Y. Marian, The Discursive Failure in Comparative Tax Law, 58 Am. J. Comp. L. 415 (2010).
Tax comparatists tend to bemoan the grim status of their chosen field. Complaints are aimed both at the scarcity of decent comparative legal tax scholarship, and at the lack of a theoretical foundation for the study of comparative tax law. The purpose of this Article is to portray a more sanguine, yet critical, view of this field. Sanguine, since a sympathetic reading of contemporary comparative tax scholarship demonstrates that there is more than enough such scholarship to generate a lively debate on comparative tax works and their methodologies. Critical, since all of these works fail to produce even the faintest form of paradigmatic discourse. The result is that contemporary academic literature in comparative tax law contains strongly conflicting arguments, running parallel courses, without ever engaging each other. In this Article, I try to construct a framework for a coherent and vigorous academic discourse on comparative taxation. I do so by placing existing comparative tax scholarship in the context of pivotal debates within general comparative law, and point out the abundant contradicting arguments in the field of comparative tax law. One cannot help but wonder how is it that tax comparatists have failed to support or rebut each other’s positions. One possible reason for this lack of engagement is perhaps that it enables tax comparatists to rest comfortably in the warm confines of their own scholarship without being bothered by questions regarding their methodological — and consequently their ideological - stances. Finally, for the sake of a debate, I offer my own views by responding to a recent article authored by Carlo Garbarino.