Abstract
Legal indeterminacy comes in a variety of forms identified here as: (i) general indeterminacy; (ii) factualindeterminacy;and (iii) Mach/Feyerabend factualindeterminacy. The concept ofgeneral legal indeterminacyrefers to problems in interpretation and has been extensively studied. Factual indeterminacyrefers to the indeterminacy of as a matter of tax law when derived from separately indeterminate fields of law. Mach! Feyerabend factual indeterminacyrefers to words as derived from theory which provide the content for interpretation. The facts in tax law are not transcendent to law; in addition, the fact words of tax law cannot be simply imported from the held of economics. The incremental question of the origins of theory (as discussed by Karl Popper and Albert Einstein) is also analyzed here. The theory of taxlaw originates with sympathy with experienceor intellectual love (tr. Einfuhlung) of tax law by lawyers as reflected in the special heuristics and practices of the profession. Legal theory accordingly functions in similar fashion to scientific theory where a particular theory can be falsified (qua Popper) or understood in pluralistic terms by incorporating auxiliary ideas.
Highlights
Where the legislature did not contemplate a particular situation in drafting a law the codified result may be indeterminate in application. Both legal realists and positive law scholars allow for the potential of legal indeterminacy
Mach/Feyerabend factual indeterminacy refers to the first identification of a situation that cannot be expressed under the existing framework of tax words
Once the new words exist it is still possible to have general factual indeterminacy under the tax law, but at least the word-categories exist to formulate a decision about the “facts.”This example should further illustrate that the proposal everyday language would suffice for tax law is clearly unsatisfactory; such an idea is ostensibly inapplicable in the tax context
Summary
The identification of “facts” is a critical aspect of legal interpretation. If the respective“facts”to which a law will be applied are not consistently determinable legal outcomes may be indeterminate. “legal indeterminacy” means interpretational problems regarding the law itself with the fact words taken as given (perhaps derived from everyday language). This comprises the prior discussion of indeterminacy in the context of positive law and legal theory. The origin of the indeterminacy thesis is explored in the context of tax law This frames the importance of the issue to the field of legal theory given that various tax scholars have proposed importing the meaning of words from the field of economics. The method of replacing legal theories is discussed in the context of tax law
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