Factual Indeterminacy in International tax Law

• Author: B. Bogenschneider
• Position: University of Surrey (Guildford, United Kingdom)
• Pages: 73-102

BRICS LAW JOURNAL Volume III (2016) Issue 3

FaCTuaL InDE TERMInaCY In I nTERnaTIonaL TaX Law

BRET BOGENSCHNEIDER,

University of Surrey (Guildford, United Kingdom)

DOI: 10.21684/2412-2343-2016-3-3-73-102

Legal indeterminacy comes in a variety of forms identied here as: (i) general legal

indeterminacy; (ii) factual indeterminacy; and (iii) Mach/Feyerabend factual indeterminacy.

The concept of general “legal indeterminacy” refers to problems in legal interpretation and

has been extensively studied. “Factual indeterminacy” refers to the indeterminacy of facts

as a matter of tax law when derived from separately indeterminate elds of law. “Mach/

Feyerabend factual indeterminacy” refers to fact words as derived from legal theory which

provide the content for legal interpretation. The “facts” in tax law are not transcendent to

law; in addition, the “fact” words of tax law cannot be simply imported from the eld of

economics. The incremental question of the origins of theory (as discussed by Karl Popper

and Albert Einstein) is also analyzed here. The theory of tax law originates with “sympathy

with experience” or “intellectual love” (tr. Einfühlung) of tax law by lawyers as reected in

the special heuristics and practices of the profession. Legal theory accordingly functions

in similar fashion to scientic theory where a particular legal theory can be falsied (qua

Popper) or understood in pluralistic terms by incorporating auxiliary ideas.

Keywords: indeterminacy; legal science; Mach; Feyerabend; Popper.

Recommended citation: Bret Bogenschneider, Factual Indeterminacy in Interna-

tional Tax Law, 3(3) BRICS Law Journal 73–102 (2016).

Table of Contents

1. Introduction

2. The Indeterminacy Thesis

3. Where Do Legal “Facts” Come From?

a. Feyerabend’s “observational language” versus everyday language

BRICS LAW JOURNAL Volume III (2016) Issue 3 74

4. Where Does Legal “Theory” Come From?

5. Legal Science and Indeterminacy

a. The Testing of Legal Theory by Theory

6. Conclusion

1. Introduction

The identication of “facts” is a critical aspect of legal interpretation. If the

respective “facts” to which a law will be applied are not consistently determinable then

legal outcomes may be indeterminate. But, the potential for factual indeterminacy

is not what is meant by the general usage of the term “legal indeterminacy”. In the

theory of positive law (particularly as relevant to tax law) “legal indeterminacy” refers

to the potential for diering interpretations of a given law.1 For example, where the

legislature did not contemplate a particular situation in drafting a law the codied

result may then be indeterminate in application. Both legal realists and positive law

scholars allow for the potential of legal indeterminacy.2 However, the question not

normally addressed by positive legal theory is: Where do legal “facts” come from?

Here, the reference to “facts” means the fact words necessary to identify the “facts”

relevant to legal interpretation under the law.3 As recently identie d by Mik hail

Antonov, Continental European positive law scholars have insuciently addressed

the pertinent question about the origin of legal “facts”.4 One proposal is that the

1 See Michael Potács, Legal Theory (Vienna: Kluwer, 2015), at ch. V, sec. A, pt. 2 (“Even Kelsen stressed the

exact opposite: ‘All previously developed methods of interpretation always lead only to a possible, not

a single correct result.’ The assumption here is that legal positivism constitutes an objective meaning

(or content) of legislation. However, this assumption does not exclude the possibility that the objective

meaning of legislation is vague or indeterminate.”).

2 Karl N. Llewellyn, The Bramble Bush: Some Lectures on Law and Its Study 26 (New York: Columbia

University Press, 1930) (“Is it not obvious that as soon as you pick up this statement of the facts to

nd its legal bearings you must discard some as of no interest whatsoever, discard others as dramatic

hut as legal nothings? And is it not clear, further, that when you pick up the facts which are left and

which do seem relevant, you suddenly cease to deal with them in the concrete and deal with them

instead in categories which you, for one reason or another, deem signicant?”); Cristoph M öllers,

Towards a New Conceptualism in Comparative Constitutional Law, or Reviving the German Tradition of

the Lehrbuch, 12(3) Int’l J. Constitutional Law 603 (2014) (“Perhaps the most important element in the

realist critique of legal concepts has stressed their indeterminacy. This is surprising because there is

virtually nobody in the classical formalist era of ‘Begrisjurisprudenz’ or common law formalism à la

Langdell to have claimed that legal concepts were determinate.”).

3 See infra part 3.

4 Mikhail Antonov, Systemacity of Law: A Phantasm? 3(3) Russian Law Journal 110 (2015) (“[T]he paradigm

of interpretation of reality dictates, or is interrelated with, the paradigm of facts. In continental legal

doctrine, the concept of a ‘legal system’ constitutes the predominant paradigm of interpretation,

which in turn indicates that law shall be described and interpreted as a whole. Even if this approach

can appear intuitively correct within the continental legal paradigm, it remains basically devoid of any

serious analytical evidence.”); see also Антонов М.В. О системности права и «системных» понятиях