Taxation and the Common Good

A large part of current political debates is devoted to taxation, and how much of our incomes we, as citizens, consider to be a necessary or just contribution to the government. Although candidates debate specific programs and policies, at its base, the argument depends on a more fundamental difference between those who feel a sense of commitment to the community, and those who lack the desire to subordinate private interests for the common good. In short, for this latter group, “civic republican norms of equality anchored in notions of mutual obligation run adrift in a sea of commercialism that equates equality with ‘keeping up with the Joneses.’… In our consumer democracy, consumption is the raison d’etre.” (Collins & Skover, 71 Tex L Rev 697, 1993). Hoarding out of fear is not unrelated to this sentiment.


Moreover, as the public-interest law professor Peter Gabel points out (most frequently in his capacity of Associate Editor at Tikkun Magazine), the legacy of “individual rights” that underlies the American legal system, as well as the American mythology of self-determination and libertarianism, militate against a sense of interconnectedness and community. A legal system that is primarily adversarial is more likely to foster a culture that rewards a zeal for retribution rather than a focus on public interest. Thus the concepts of American heritage and indeed “liberty” become conflated with notions of “me first,” and disconnection from others is seemingly legitimated by both law and history. We do not see ourselves as existing within political communities (aside from the militaristic aspect); the concerns of others are simply not our problems. Worse yet, help for the less fortunate is seen as an “entitlement”, a code word that has come to symbolize: lazy, irresponsible, and usually, a person of color.

How do you change these poisonous memes? A movement among legal theorists for a renaissance of “civic republicanism” was quickly quashed by those who argued that implementation of civic “virtue” would require a despotic interference with private preferences; how might this be accomplished without brainwashing, coercion, or other decidedly undemocratic techniques? (see, e.g., Gey, 141 U. of Penn Law Review 801, 1993). One could also argue that, from an ethology standpoint, you can’t fight evolution. The overlap of culture that homo sapiens has acquired obscures but does not eliminate the natural tendencies of primates to define self by separation from others; to act aggressively toward out-groups; and to behave primarily in a way that will prove most beneficial for the preservation and perpetuation of ones own gene pool in preference to that of any others.

There is a slightly more optimistic stance, following the thought of the late Yale law professor and philosopher Robert M. Cover (1944-1986). He famously wrote that “[w]e inhabit a nomos – a normative universe. We constantly create and maintain a world of right and wrong.” (Robert M. Cover, “Nomos and Narrative,” 97 Harv. L.R. 1, 1983). Law is a system of meaning that spans the gap between what is and what ought to be. To Cover, law provides a bridge for us to help us get to a better place in our behavior. Just as human nature is a transformative process, law suggests how we might best transform ourselves: “We ought to invite new worlds.”


One might detect a drawback to this conceptual framework because of the fact that “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.” And in this country, we simply do not share the same interpretive commitments. Did the Declaration of Independence mean the same thing to Frederick Douglass as it did to Stephen Douglas? Was the spiritual father of our country Thomas Jefferson, or Jefferson Davis? Our narratives of our past come from diverse sources.

On the other hand, our ideas of what ought to be come to us from our sacred texts. Cover wrote:

Historians of religion have time and again demonstrated that Messianic and apocalyptic narratives have not only proven resistant to social controls, but also that … they are taken most seriously as meaningful guides for conduct.”

Cover had a particular interest in minority religious communities, because with no centralized power or ability to use coercive violence, “common, mutual, reciprocal obligation is necessary.” His analysis of the mythic center of Jewish law revealed a system that institutionalized the principles of obligation through “mitzvahs.” That is, rather than “rights” begrudgingly granted, there are “responsibilities,” the provision of which is moving and dignifying. At the end of his article on “Obligation: A Jewish Jurisprudence of the Social Order” (5 J.L. & Religion 65, 1987), Cover makes his argument most compellingly:

The struggle for universal human dignity and equality still proceeds on many levels all over the world. There is no question that we can use as many good myths in that struggle as we can find. Sinai and social contract both have their place. Yet, as I scan my own – our own – privileged position in the world social order and the national social order, as I attend the spiritual and material blessings of my life and the rather obvious connection that some of these have with the suffering of others – it seems to me that the rhetoric of obligation speaks more sharply to me than that of rights. Of course, I believe that every child has a right to decent education and shelter, food and medical care; of course, I believe that refugees from political oppression have a right to a haven in a free land; of course, I believe that every person has a right to work in dignity and for a decent wage. I do believe and affirm the social contract that grounds those rights. But more to the point I also believe that I am commanded – that we are obligated – to realize those rights.”

Normative legal thought is not without its critics, just as is civic republicanism. As Pierre Schlag observes ironically, “”the problem is not what normative legal thinkers do with normative legal thought, but what normative legal thought does with normative legal thinkers. What is missing in normative legal thought is any serious questioning, let alone tracing, of the relations that the practice, the rhetoric, the routine of normative legal thought have (or do not have) to the field of pain and death.” (Pierre Schlag, 43 Stan. L.R., 167, 1990). To me, this is what the Supreme Court was theoretically designed to contravene. As we have seen, however, it is not immune from the prejudices, politics, and temptations that befall all other citizens. The key might lie in leadership, inspiration, and example.

Without leadership to inspire us to eschew the spiritual emptiness of self-oriented materialism, without a sense of obligation and empathy, we have little chance of escaping the spiraling social and cultural decay we are facing. Without those at the top of our pillars of government demonstrating a recognition of the common humanity and ties among all people, there is no inspiration to rise above our baser natures. Our lives have not been enhanced by continuous consumption and self-absorption; why not give a chance to the affirmation that comes from a life of community connectedness; a life that tries to cross that bridge from what is to what ought to be?



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