Paper's abstract

Laurent Fonbaustier, Critical Comments on an Open Texture Principle
1. Because of a paradox, but only a seeming paradox, due to the historical and philosophical circumstances of the birth of the principle of equality concerning taxes as well as to the complex factors (economical, social, cultural) that directed its evolution, the principle of an actual tax equality implies a policy of equality through tax which itself creates an inequality in front of taxes. This inequality forces one to substitute to the phrase "equality in front of taxes" the words, for the moment more relevant, of "no (unjustified) discrimination in front of taxes". Considering the width and variety of discriminations allowing an adjustment or a modification of the principle of equality in front of taxes, this, sceptical, study raises the issue of an horizon of objectivity, from the judge or the legislator, when determining the criteria that may base inequality in law. Is not the judicial control over legislative discriminations in tax matters simply making an organic substitution in the assessment of the taxpayers categories, without necessarily guaranteeing justice ? Beyond the relationships between institutions, equality in front of taxes and the discriminations it entails asks once again the eternal question of the open texture of law, and of its inability to reflect the infinite variety of the factual situations. 2. Contrary to other declensions of the equality principle, the principle of equality in front of taxes was immediately comprehended as possibly accompanied, in order to be properly implemented, with differentiated treatments and positive discrimination (I). These have a textual basis as ancient as the principle of equality in front of public office itself and also infer a legitimating philosophical reasoning (A). This double basis allowed the opening of various adjustments, admitted by legal precedents, to equality in front of taxes (B). However, the issue of their limits (II) may be put on two levels: the threat of an arbitrary power of the fiscal legislator or the administration is curbed by the judge who controls breaches to strict equality (A), a limitation that then raises a more structural issue: that of the interpretation of the principle by the judge and, more generally, the discrepancy between an ideal tax justice and its implementation by law (B).

Key Words : equality, open texture, discrimination, arbitrary
t. 46, 2002 : p. 79-102