CPL Seminar: 'Tax, state-building, and the UK’s territorial constitution'

Speaker: Dr Dominic de Cogan, University of Cambridge

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.

The discussion of constitutional law relating to taxation tends to be stuck in a rut. Some emphasise the importance of the protection of property and process rights. Others emphasise the need to fund social programmes and regard ‘constitutional’ protections of property rights as potentially obstructive.

These debates are valuable but are also narrow. As Tony Prosser shows, a descriptive account of tax in the constitution can be very helpful in revealing a wider range of possible lines of enquiry. Prosser focuses on institutions, but a more dynamic approach is taken by two other authors. In a seminal treatise of 1918 that is foundational for the field of fiscal sociology, Joseph Schumpeter contended that tax practices are both a consequence and cause of wider social conditions.
This was an inherent feature of tax but was most visible at key turning points such as the end of the First World War. John Snape adopts a different starting point but makes a comparable argument that even the smallest detail of tax law has a political character and as such is formative of the overall political settlement.

The present paper combines these perspectives and argues that we are at a turning point now, when the detail of tax law is likely to have compounding consequences for the future shape and interpretation of the UK’s constitution. In return, it is argued that a deeper exploration of public law would be useful to tax specialists. Perhaps in response to the financial crisis, tax scholarship is enjoying a profusion of new perspectives and disciplinary engagements. Lawyers need a means of processing all of this information and in particular of judging the significance of law relative to everything else. Public law is a natural forum for this, and might be so even in jurisdictions with written constitutions.