Investigating Legal Consciousness through the Technical Work of Elite Lawyers: A Case Study on Tax Avoidance

Published date01 June 2019
DOIhttp://doi.org/10.1111/lasr.12397
Date01 June 2019
Investigating Legal Consciousness through the
Technical Work of Elite Lawyers: A Case Study on
Tax Avoidance
Pascale Cornut St-Pierre
Since the 1990s, legal consciousness has been amply used by sociolegal
scholars to better understand the everyday lives of ordinary people, with a
strong focus on vulnerable or impoverished people. This article argues that
legal consciousness, with some methodological adjustments, could lend itself
to the study of the rich and powerful by investigating both the technical
work of their lawyers and how that work shapes our broader legal culture.
To illustrate this point, this article takes tax avoidance as a case study. Draw-
ing on materials revealed by a recent tax scandal, it suggests that current dif-
ficulty in tackling the problem of tax avoidance rests on uneven access to the
cultural repertoires related to legal technique and legal innovation, which
fosters the tax-avoidance narrative’s ambiguity.
Tax avoidance is a complicated story that presents the most
profitable multinationals as paying virtually no taxes while still
abiding by the letter of the law.
1
It portrays tax authorities as vig-
orously devoted to hunting down tax evaders but concentrating
only on small contractors and black-market workers, thus leaving
big businesses and wealthy individuals largely undisturbed
(e.g., Spire and Weidenfeld 2015). It is an ambiguous tale about
cooperation and competition in which states are committed to cre-
ating a level playing field among themselves but create loopholes
in their own legislation and indulge the tax havens most beneficial
to their nationals (Palan et al. 2009). Tax avoidance is sometimes
described as acceptable and efficient and sometimes as aggressive,
Assistant Professor, Faculty of Law of University of Ottawa (Civil Law Section). I
thank the three anonymous reviewers of the Law & Society Review, as well as Je
´ro
ˆme
Pe
´lisse, Pascal McDougall, Thomas Burelli, Marina Kurkchiyan, and the participants to
the “Extending the Reach of Empirical Studies of Legal Consciousness” panel held at the
2017 Law & Society conference in Mexico for their useful comments on earlier versions
of this article.
Please direct all correspondence to Pascale Cornut St-Pierre, Faculty of Law (Civil
Law Section), University of Ottawa, 57 Louis-Pasteur (307), Ottawa (ON), K1N 6N5,
Canada; e-mail: pascale.cornutst-pierre@uottawa.ca
1
Allegations of multinational corporations paying a near-zero tax rate on their
global profits have multiplied over the last decade. For example, Apple paid an effective
corporate tax rate of 0.005 percent on its European profits in 2014 (European Commis-
sion 2016). The same year, Google paid a 2 percent effective tax rate on its profits made
in the United Kingdom (Tax Justice Network 2016).
Law & Society Review, Volume 53, Number 2 (2019): 323–352
©2019 Law and Society Association. All rights reserved.
323
abusive, unethical, and, perhaps, even illegal. Some equate it with
mere tax planning—simply “the ordering of one’s affairs in such a
way as to reduce the tax that would otherwise be payable”
(Li et al. 2017: 530). Others amalgamate it with fraudulent tax
evasion, stressing the shared goal and effect of each (i.e., the rich
paying less than their fair share of taxes) and the elusive delinea-
tion between avoidance and evasion (Likhovski 2004: 991–95;
McBarnet and Whelan 1991). Faced with an issue that the law
seems incapable or unwilling to solve, tax activists, nongovern-
mental organizations, and the media try to reframe the debate in
broader terms of morality and justice rather than reduce it to
legal technicalities (Christians 2013; Christians 2014: 39–40).
Yet, this narrative speaks little to one of its crucial characters:
elite lawyers specialized in tax planning. Whether practicing in
multinational law firms or in multidisciplinary firms, such as
global accounting firms,
2
that offer legal services, elite lawyers are
the experts of legal technicalities underlying most tax-avoidance
strategies, but they are also more than this: their technical work
shapes our broader legal culture. While several studies have
examined the ways professional ideology, career strategies, and
the rise of global law firms may influence the development of law
(Dezalay and Garth 1996; Faulconbridge et al. 2008; Flood 2007;
Sarat 2002; Shamir 1995), few scholars have examined how elite
lawyers’ technical inventions impact common understandings of
law. Previous works have shown that in areas other than tax, elite
law firms were a “pillar of globalization” (Flood 2007: 41). By
serving as advisers, advocates, lobbyists, and negotiators for both
businesses and governments, elite lawyers have been found to
contribute to the harmonization of legal solutions worldwide, the
construction of global regulatory regimes, and the emergence of a
new global law (Arthurs 2001: 275; Faulconbridge and Muzio
2012: 144; Gessner et al. 2001: 18; Lewkowicz and Van Waeyen-
berge 2010). Their work in corporate and capital-markets law, for
instance, is said to enable transnational business deals that, with-
out their involvement, would seem too risky (Flood 2007: 38). In
other areas, and in a less visible manner, however, elite lawyers
also orchestrate the fragmentation and complexity of law (Arthurs
2001: 275–77; Wainwright 2011: 288–91). Where they wish, they
can mount a “highly skilled resistance” (Llewellyn 1930: 459) to
regulators by designing strategies to circumvent or to “comply
2
Since the 1990s, the biggest accounting firms have increasingly emphasized their
legal services, becoming significant competitors to the biggest law firms, especially in the
tax-planning field. While the relationship between lawyers and accountants has often
been described as one of competition and confrontation (e.g., Dezalay and Garth 2004),
one should not forget the shared culture of legal professionals working in international
taxation (Picciotto 1995: 27).
324 Legal Consciousness and the Technical Work of Elite Lawyers

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT