My best law school buddy, Jarvis (yes, the same one who made Iago do shocking things in the bathrooms in the law library), who is one of the smartest people I know, poined out to me something last year that is very fundamental about the law school pedagogical exercise: The question in law school is not "Why?" but rather "How?" With relatively few exceptions, we are taught the process to get things done, and in so doing, the curriculum elides the reasons underpinning those processes. We do talk policy. In fact many professors make it a point of testing us on the policy implications behind the law as it exists. But in the course of educating us, there is little attention given to alternatives to the existing structure.
This is largely understandable. We are after all in a professional school, and most of my classmates -- and I among them -- will go on to work within the system with which we become so familiar over the course of our three years here. Furthermore, for the most part, I do not have a problem with this. Although I am adverse to many laws that seek to control and manipulate behaviors that have no effect on anyone but the person engaged in that behavior, I recognize meanwhile the need for clearly delineated laws in order to prevent the use of force and fraud against individuals and, of equal importance, to circumscribe the areas over which the government can wield its monopoly of force.
I am this semester taking a class called Federal Income Taxation. It is fascinating. I am learning much about basic economics, e.g., how the IRS defines income, the concept of imputed income (which is not recognized by the IRS), etc., as well as gaining insight into the whys and wherefores of taxation, e.g., why an income tax and not some other kind of tax. There is constitutional support for the levying of an income tax (the 16th Amendment, ratified 1913), and in fact such taxation went on before there was a constitutional amendment allowing such, as during the Civil War.
However, and pursuant to the above How/Why dichotomy, I am a bit off-put by the approach of both of the text book and my professor to the concept of income taxation. It is just taken for granted that the government should be able to lay claim to a portion of your income for no other reason than legislative fiat. And when a tax "opportunity" arises (i.e., when the economic reality outpaces the law of taxation; a loophole), the tone of the discipline is one of opprobrium, as if one is shirking one's duty to the country to pony up the monies "owed". There is no talk about curbing spending, about applying the same level of scrutiny to the government's expenditures as "The Service", as tax lawyers ominously call the IRS, applies to that of individuals.
Of course, at the risk of baring my libertarian teeth, the reason for this rests in the aforementioned monopoly that the government enjoys on the sanctioned use of force to get their way. It is Ayn Rand's 'Barrel of a Gun', more precisely her recognition that to deal with man using exclusively force is as irrational as to try to deal with brute nature using nothing but reason. If you do not pay your taxes - up front, I might add, in the form of withholdings -- the government has the exclusive right to come to your home and put you in jail. You have no rational choice in the matter, no bargaining power.
Jarvis tries to quell my ire when I bring this up to him. The law school and the textbook editors and the sweet Victor Fleischer who tries his best to teach us this tax law four mornings a week are not in the position to make us into little anti-tax warriors. No, they are all there to teach us how to be lawyers, so that we can get a nice, comfy job and resume our real roles as honest taxpayers.
Well put. In my position as an amateur philosopher, I am irritated when people confuse my job with that of a lawyer or a political scientist. It is as if they do not recognize a distinction between the words 'should' (philosophy), 'could' (science), and 'is'(practice).
In the state of absolute harmony, these three roles are very near to one another to such a point of being considered the same. At present, however, the distinction is vitally important in order to conduct each properly.
To put things more specifically in relation to your examples: A philospher says that taxation is morally objectionable as a violation of one's right to property. A political scientist says that we could alternatively fund the government by per-use fees. A lawyer says that this is how we collect.
Posted by: Trey Givens | January 27, 2004 at 03:50 PM