A HITCHHIKER'S GUIDE TO COMPARATIVE TAX SCHOLARSHIP.

• Author: Brooks, Kim

1. THE POTENTIAL OF COMPARATIVE TAX LAW SCHOLARSHIP 2 II. DOCTRINAL COMPARATIVE TAX SCHOLARSHIP 11 A. Purpose 1: To Learn More About Our Own System and Context 13 B. Purpose 2: To Learn More About Others' Systems and Context 17 C. Purpose 3: To Draw General Conclusions About Tax Law 22 III. NORMATIVE COMPARATIVE TAX SCHOLARSHIP 26 A. Purpose 4: To Press for or Support Legal Change 26 B. Purpose 5: To Search for a Common Legal Future (and to Harmonize or Coordinate) 32 C. Purpose 6: To Spread Higher-Order Values 37 IV. EXPLANATORY COMPARATIVE TAX SCHOLARSHIP 40 A. Purpose 7: To Explain Why a Country's Laws Are the Way They Are (and Why They Differ or Are the Same as Other Countries) 40 B. Purpose 8: To Provide Insight into Social Reality 43 V. LESSONS FROM COMPARATIVE TAX LAW'S PURPOSES 46 I. THE POTENTIAL OF COMPARATIVE TAX LAW SCHOLARSHIP

   The controversial claim of this Article is that most comparative tax scholarship is not very good. Perhaps surprisingly, it is hard to find explicit criteria for what constitutes good scholarship. (1) In a Reality Bites kind of way, the general assumption is that scholars know good scholarship when they see it. (2) A standard answer is that scholarship involves the creation of new knowledge. But good scholarship presumably does more than that. Daniel Feldman, faculty of law at Cambridge University, offers a thoughtful list of ideals:

   (1) a commitment to employing methods of investigation and analysis best suited to satisfying [the author's curiosity about the world]; (2) self-conscious and reflective open-mindedness, so that one does not assume the desired result and adopt a procedure designed to verify it, or even pervert one's material to support a chosen conclusion; and (3) the desire to publish the work for the illumination of students, fellow scholars or the general public and to enable other to evaluate and criticise it. (3) One of the barriers to authoring robust comparative tax law scholarship is the unsettled nature of comparative law and the sophistication of the debates among comparative law scholars. For well over a century, comparative law scholars have debated the underlying theories that animate comparative law. Despite the longevity of the comparative law conversation and the gravitas of its participants, comparative law scholars have not cohered around an answer to even the basic question of whether comparative law is a distinct science or simply a method that can be applied in any area of jurisprudence. (4) Those ongoing disputes make approaching the discipline of comparative law daunting. When scholars avoid undertaking comparative work because of the added layer of grappling with not only the substantive area of law in which they are interested but also rich and unresolved comparative law debates, we miss the insights that might be gained from the experiences of others.

   While the intensity of the differences of views in comparative law is palpable, (5) there is broad consensus about comparative law scholars' schools of thought. (6) It simplifies the spectrum of those schools, but in a way satisfactory to this Article, to describe the central debate of comparative law as between those who adhere to a functionalist view of comparative law and those who see law as deeply cultural. Scholars who adopt functional approaches to comparative law seek to identify the underlying social, economic, or political problem that law attempts to resolve. They then compare how different units (usually countries) settle those problems using law. Functionalism lends itself particularly well to the project of evaluating the effectiveness of different legal resolutions to common social, economic, or political problems. It is this advantage, namely, the ability to identify a preference for one legal resolution over another, that has led to criticisms of the approach as imperialist. The concern is that the comparatist who recommends one legal solution over another does so with insufficient understanding of the context of at least one of the jurisdictions being compared (generally the one in which they are an "outsider"). As a result, the comparatist risks falling into the trap of assuming one legal resolution is better than another either because they have insufficient contextual (or cultural) information or because they have implicit biases (based on familiarity) that lead them to favour one solution over another.

   In the modern literature, commonly the "others" against whom functionalists are compared are scholars who take a hermeneutical or cultural approach to comparative study. For those scholars, most quintessentially Pierre Legrand, hermeneutics avoids the imperialist potential of functionalism. The legal text is a manifestation of culture (like art or music) and is to be read as a signifier. Comparatists use that text not as a subject for comparison in and of itself but, instead, as the lens through which to gain access to information about the cultural setting within which that text is embedded. The focus of comparative work undertaken in the hermeneutical tradition is not to explain different legal systems: it is to understand (or try to understand) "the other." In its more extreme forms, scholars in the hermeneutical tradition claim that some legal regimes are so culturally distinct that they cannot be compared. For example, Legrand has claimed that there is a fundamental cultural difference of mentality between civil and common law that precludes effective comparison. (7)

   These conventional taxonomies of comparative law scholarship are not easily accessible to the non-comparatist. This is a concern for adherents to Feldman's view of scholarly excellence. As Feldman observes:

   There is a....problem if the author is writing not for the full community of legal scholars but only for a group within it....He may then twist the language until it becomes almost unrecognisable, a sort of private code....[that] prevents knowledge and understanding being disseminated, confining it instead to a closed group. (8) Tax comparatists who situate their scholarship against the conventional taxonomies risk speaking only to other tax comparatists, a small group. And the taxonomy itself risks alienating tax scholars (and graduate students) who might otherwise have made meaningful contributions if they were brave enough to approach comparative tax projects.

   Comparative law offers scholars a fascinating lens through which to discover new insights about the world, but only if we take on comparative law projects. As Maurice Adams and Dirk Heirbaut a legal philosopher and a historian respectively, reflect, "[c]omparative law is a collection of methods that may be helpful in seeking answers to an almost endless variety of questions about law (broadly defined)." (9) Yet, few legal scholars devote a substantial strand of their research to comparative study, and so their work fails to benefit from the active and prolonged debates in comparative law. (10) This Article makes what I hope is a substantial contribution: it seeks to render more accessible the comparative law scholarship with the aim of facilitating easier access to comparative law insights for tax (and hopefully other) law scholars. It seeks to avoid the challenges of the "private code." (11) And it seeks to engage tax comparatists (or would-be comparatists) in a "co-operative enterprise" where we are more likely to engage with each other with the "goal of improving understanding." (12) In short, it seeks to enhance the discipline of comparative tax law by enabling other tax scholars to write better comparative tax law scholarship.

   The major contribution of this Article is the development of a taxonomy of the purposes of comparative tax scholarship. It takes as its starting point tax scholar Omri Marian's observation that, "[t]o date, there is no debate regarding the purposes of comparative taxation, and as long as we do not start questioning those purposes, there is little use in discussing methodologies." (13) Understanding comparative tax law scholarship according to its purposes assists scholars in their thinking about how to make and evaluate decisions about their comparative choices. The ability not only to author meaningful work that reflects one's curiosities but also to offer readers with an entry point for evaluation are among Feldman's imperatives. The purpose of a scholarly project dictates some, if not all, of the decisions about what and how things should be compared. Articulating and refining the purpose of a project achieves two goals for authors: first, it provides the scholar with a benchmark against which to make decisions about the scope of the inquiry; which units (countries) should be chosen; how many countries are necessary for comparison to be robust; and how detailed a knowledge of each country's tax laws, practices, and context is required for an effective study. These are the decisions that generate most of the debate among comparative law scholars. Second, and perhaps most importantly, it provides the scholar (and readers) with the ability to evaluate the quality of the work. (14)

   This approach to creating a taxonomy of comparative tax work aligns with Annelise Riles's insight that part of what has distinguished comparative law scholarship is its emphasis on projects. (15) Riles does not appear to argue for projects as a normative matter; instead, she identifies a commitment to various projects (identified through articulated or assumed purposes) as a distinguishing feature of the work of the masters of comparative law. (16) Most tax scholars who rely on comparison in their scholarship do so in aid of a tax law project; the question is what are the purposes of those projects? And the claim of this Article is that if we could speak about the purposes of comparative tax law in an accessible way--a way that engages the full community of scholars and not just a small group--we could enhance the...