Szymon Obuchowski

This paper’s concern is focused on amajor amendment of the Tax Ordinance Act – article 2a enforced by the Act of the August 5^th 2015 (Dz.U. 2015 r. poz. 1197). According to the Act’s substation, it was designed to be an introduction of a new “principle of the polish tax law” through incarnating as a part of legal system the directive of law interpretation widely known as in dubio pro tributario. The amendment aimed to strengthen the legal covers which protect tax bearers from vagueness of the tax law. Paper confronts these assumptions with theoretical achievements concerning principles of law. It points out that, contradictory to the Legislator’s claims, the new article 2a cannot be recognised as a principle of law; moreover, it raises several doubts in the other fields which together may result in its malfunctioning.

This contribution introduces the idea of incompletely theorized agreements conceived by American legal theorist Cass R. Sunstein to the doctrine of tax law. The main aim of the contribution is to describe the content and nature of the idea in by presenting the ways in which it may be seen as coherent with empirical reality and how to assess its connection to it. The paper also draws several conclusions that can be made by juxtaposing the idea with the process and issues of tax law-making in divided society with examples drawn from Polish practice. What follows is the prescription to keep the discussion concerning tax law amendments as disconnected from political practice in divided society as possible, in order to maintain tax law quality and efficiency. It should be practically oriented and focusing on outcomes of projected legislative actions that are possible to predict. The methods used in the article are mainly description, discussion compiling and reshaping of theoretical ideas, rhetorical justification and grounding of drawn conclusions.

In the paper it is observed that methodology of traditional legal dogmatics omits the philosophical problem known as the “is−ought problem” or “Hume’s guillotine” according to which it is not logically possible to derive normative statements from descriptive statements and vice versa. Dogmatic arguments based on interpretation of a fragment of the system of law nevertheless contain comments and recommendations on empirical reality which that fragment of law regulates. It is shown in the paper that in doing so, their authors include enthymemes in their arguments, which are syllogisms with hidden premises. Since law belongs to the wider category of humanities, these enthymemes are of rhetorical kind, and this calls for increased caution in order to avoid theoretical fallacies which may result in misguided changes in the system of law.