TAX COMPLEXITY AND THE RETURN OF THE STATE. A tribute to Pierre Bourdieu

 

 Tax Complexity and the Return of the State.

 A tribute to Pierre Bourdieu.

Tulio Rosembuj, 17 de agosto de 2021 

Abstract.

The bases of the complexity are: the combination and grouping of individuals; the non-linearity; the diversity of the elements, which can strengthen or weaken the system’s resilience; the information flows between the parties. iversity, non-linearity, spontaneous self-organisation. Any economic, social, political, legal system is a complex system. The law qualifies these properties from its definitions: integration and diversity, effectiveness, legitimacy. The expansion of social interactions means more diffusion of the law and resilience to its effectiveness and legitimacy erosion. The State loses legitimacy and trust because there is no correspondence between the tax and the provision of essential public goods. The new paradigm is the return of the State and the institution of a new global public domain. The right to the protection of the State, sustained in the G20 (BEPS), defines each country’s right to protect its tax base from erosion and profits shifting as a guarantee of the tax collection wherever the creation of profit and value is. The recovery of the symbolic power of the State as P. Bourdieu taught.

Summary.

1.Complexity. 1.1. Complex system interactions. 1.2. Spontaneous self-organization. 1.3. Precautionary and relative certainty. 1.4. Complex systems. 1.4.1. Complex adaptative systems. 1.4.2. The complex adaptative system of economics. 1.4 .3. The complex adaptative system of the ecosystem. 1.4.4. The complex network system. 1.4 .5. The complex adaptative system of the digital platform. 2. The complex adaptative legal system. 2.1. Integration and Diversity. 2.2. Rules of law effectiveness and non-linearity. 2.3. Legitimacy and self – organization.  2.4. Incomplete complexity. 2.5. The market. The partial complexity. 2.6. Pierre Bourdieu. The symbolic power. The complete complexity. 3. The force of law. 3.1. The force of tax law. 3.2. The game’s rules in the tax field. 3 .3. The symbolic power of the language. 3.4. The transformation of ordinary language into technical language. 3.5. Agents of fiscal complexity. 4. Tax systems. Complex or complicated. 4.1. Integration and Diversity. 4.2. Effectiveness and non-linearity. 4.3. Legitimacy and self-organization. 4.4. Complexity and complication. 4 5. The source of tax complexity. 4 .6. The rhetoric of simplification. 5. Meta-capital of the State. 5.1. Neoliberalism. 5.2. The new paradigm of the G20. Global public domain. 5.3. The right to the protection of the Fiscal State. 3.1. The creation of tax value without economic activity. 5.4. The rules of the game in the international tax field. 5.5. Tax protection and informational capital. 5.6. Tax protection and defense of disinterested interest. Conclusions. Bibliography.

1.Complexity.

The antagonist of complex thought is simplification.

The simplication of traditional thought reduces, separates, isolates, quantifies and rationalizes.

E.Morin illustrates the four pillars of simplifying certainty:

– Reduction. Knowing the base element is essential, while knowledge of its assemblages, changing and different, is secondary. It is a criterion that legal positivism uses since it supposes the prevalence of knowledge calculable and formalizable.

– Separability. The solution of a problem consists of decomposing it into simple elements. It is the key to explain the fragmentation and specialization of knowledge, for example, through the exclusion of economics, sociology, psychology from the interpretation of the rule of law.

– Order government postulates the deterministic and mechanistic sovereignty of knowledge, which excludes the coexistence with a disorder, surprise, chaos. Disaster is a parenthesis and not a continuity of a disturbing order.

– Deduction-induction. Deduction concludes from previous premises, and induction starts from particular facts to arrive at general principles. It is the classic logic that avoids a transcendental act which is the invention or creation. It is the case of resistances in law to new sources (soft law) or joint sovereignty other than Westphalian. There is no logic in the novelty.

Rationality escapes certainty, and determinism leaves its place in probability.

The complexity theory has its concretion in complex adaptative systems, whose elements aspire to survival but do not equal the system: the whole is more than the parts that make it up.The system, which is the object of the study of physics, biology, sociology, organisms, society, economy, and ecology informs in a particular way the parts that make it up, conceived in isolation, until the outcome of unforeseen emergencies.

Complexity arises when the mechanisms interact and form an organized manner and unforeseen behavioral interactions. The interactions between elements qualify the complexity as a self-organized tissue in the system.

The system overflows reduction and separation, proposing the contrary as the materialization of diverse disciplines around a set of interactions. (1)

Complexity is a leap forward of knowledge. E. Morin’s enormous intuition opens the door to understanding opposites: order and disorder, organization, and disorganization, unity, and diversity; the association of contradictions and indefinability of the concepts, the whole and the parts, object, and subjects. (2) Uncertainty accompanies the reality of what is said and done; determinism fails to explain the imaginary adventure that is true.

This is the dialogic principle: the combination of ​order and stability with disorder, degradation, and change. (3)

 

1.1. Complex system interactions.

Complexity theory informs the study of interactions between various actors or agents, which can be atoms, people, organizations, or nations, according to a series of norms or rules, with the ability to adapt to different environments, either by providing feedback or by learning and collapse if they don’t.

The system is not equal to the sum of its parts. Non-linear behavior is unpredictable because it does not respond directly to or is inversely proportional to its cause. Information produces different effects on different categories of elements, and small causes can cause disproportionate impacts.

Non-linearity implies that the relationships in the legal field are not always, and in any case, cause-effect relationships. There is no one rational explanation because the answer depends on the interactions between the agents, their positions, and their capital.

“The same” cause “- i.e, incentive or reform – may therefore result in different overall effects. Non-linearity comes hand in hand with unpredictability. The dynamics of complex systems suggest that even with perfect knowledge of the individuals comprising the system and their properties, or preferences, our ability to predict the system’s overall response to incentive is limited. In other words, in complex systems, accurate prediction often lies beyond reach”.[4]

The system is a space of competition and cooperation. Often regulated by power relations of the positions within it, the activity of each element is subject to feedback that can directly or indirectly influence it: these are open systems that interact with others; it is a system that operates in constant imbalance.

The dynamics of the system build new properties that are not predictable. The emergence of the processes between the components prevents their prediction and promotes self-organization under different conditions. Balance and stability mean death. The system has memories, traces, history distributed throughout its perimeter, and it is open to multiple interpretations.

The complex adaptive system’s properties are not the properties of their actors or agents. The interconnection between its parts goes from bottom to top in a kind of self-organization without a central direction whose dynamics are non-linear. The complex system is non-linear; it is not equivalent to the sum of its agents or actors, and each function can be interrupted, blocked, or at the limit, disappear.

A complex system, according to Melanie Mitchell, is a system in which a wide network of free components, without centralized control and simple rules of action, originate complex behavior, sophisticated information, and adaptation processes through learning or evolution.[5]

The complexity theory has spread from natural and environmental sciences to politics, economics, legal, technology, and businesses. Its leading utility is that it explains the adaptation of actors to changes or their maladjustment to circumstances in a dynamic that, although minimal, causes random and unpredictable results.

Precisely, ignorance in the forecast of results, its unpredictability, anticipates the probability of reaching limit situations, forward or backward, which can lead to catastrophes, emergencies, in short, to chaos or a rigid order exposed in its evolution and adaptation to systemic collapses. [6]

As simple as it may seem, any economic, social, political, and legal system is a complex system. The attributes are common to a broad scientific record, both natural and social or economic.

It is a form of spontaneous self-organization that oscillates between stability and disorder, which depends on endogenous or exogenous oscillations that, although insignificant, can induce profound changes in connection with unstable or turbulent external environments.

The difficulty of predicting the results of the system can be altered, without it being known at the time, by minimal changes in the interactions between its elements that promote disproportionate and unpredictable systemic transformations. The consequence is that departing from the initial circumstances that allow the ordinary and regular functioning of the complex system leads, without the opportunity of prediction, to chaos, emergency or catastrophe, or the change of state to a different situation of conservative or transformative adaptation—the continuity under other profiles.

Unpredictability responds to non-linearity, to the science of surprise.[7] Non-linear interactions are the basis of change and instability of the complex adaptive system; qualitative changes in the interconnections of the units are carriers of extreme unforeseen events that cause or may cause the change of trajectory of the system itself. [8]

Dynamical systems are unpredictable because they experience what is known as “random determinism.”[9]

” A minor disruption can trigger a domino effect that propagates through the system and propels it into a crisis state.”[10]

One distinction is between complexity and complication. A complex system does not equal complicated or vice versa. The rules of complexity are not similar to the rules of complication. The fact that a system has several elements that fulfill highly elaborate activities does not mean that it is complex. Complexity falls on systems made up of many interactions between living beings, agents or elements, non-linear, and self-feeding circuits, which prevent their joint analysis in a single time and forever.

P.Cillers illustrates the general characteristics of complex systems:

-A large number of elements.

-A large number of elements interacting dynamically.

-The interaction is enriching due to the reciprocal influence between the elements.

-The interactions are non-linear. Small oscillations can produce great results and vice versa.

-The interactions have a limited radius of influence; but they can overcome it in a few steps, forcing them to improve, suppress or alter them.

-The interactions can be recurring. The effect of the activity can be autonomous, positively, or negatively.

-Complex systems are open, interacting with their environment.

-Complex systems are not in equilibrium.

“Equilibrium is another word for death.”

-Complex systems are indebted to their history.

-Each element responds to the information it has, ignoring the system as a whole. (11)

The interaction between the elements drives the dynamics of changes around the emergence and novelty, as the consequence of the behavior patterns of the elements. (12)

Complexity sums up the paradigm of perpetual instability, of constant imbalance between systemic order and disorder, between excessive or insufficient order, mentions MCTaylor to Langdon: far from equilibrium, the complex system lives “on the edge of chaos. (13)

MCTaylor himself describes the characteristics of complexity:

-The complex systems are compositions of many parts connected in different ways.

-The components can interact in series and in parallel to generate sequential or simultaneous effects or events.

-Complex systems display spontaneous self-organization, which complicates their interior and exterior in such a way that the line that separates them is undecidable.

-The structures that result from spontaneous self-organization emerge from the interactivity of the components in the system but are not necessarily reducible to their behavior.

-The emergent properties, even when they are caused by the local interactions of the elements, tend to be global.

-The emergence of spontaneous self-organization does not qualify the complex system as fixed or static but in development or evolution. This assumes that they are open and adaptable.

-The emergence occurs in a limited framework of possibility between conditions that are too orderly or disorderly. This border is the edge of chaos that is always out of balance. (14)

Cillers and Taylor configure a concept of complexity applicable to all social and ecological systems, which coincide in some of their persistent data.

On the one hand, the non-linear interactivity of the elements of the system. On the other, the appearance of a spontaneous self-organization allows it to alter its internal and external structure and adapt its novelty positively or negatively to its environment.

As Webb says, the structure is the product of correlative interaction between the system and its elements and the environment, oblivious to any idea of ​​hierarchy. (15)

Finally, the systemic emergence prevents its change if the order is too strict, fostering a non-existent balance or promotes its dissolution in case of extreme disorder.

Spontaneous self-organization is an emergent property of complex systems, which means that it is not under external control, nor does it obey a rational internal design.

 

1.2. Spontaneous self-organization. 

The system’s complexity appears due to the localized interaction between its parts, elements, and components. They are non-linear relationships that denote potent interactions that are not insignificant, being able, from the very least, to compromise the system to the maximum of its stability. It is an emergent property of the system as a whole. (16)

Self-organization is the capacity of any system that receives the influence of its environment and modifies its trajectory. No design decides it from the outside or according to its emergence. Things happen due to the connections between the components of the system, without obedience to hierarchy or higher authority, which is why it is defined spontaneously.

Spontaneous self-organization is not a function of the teleological purpose of the system, sub-system, or social structure. Each system´s corollary is  to dynamically adapt to its environment, at the risk of perishing otherwise.

Self-organization is impossible without memory and forgetting. The system collects information from memory and uses forgetfulness. The system preserves essential for its local interactions, ignoring what is not relevant to its learning.

Memory is basic. The flow of neighboring or nearby information that comes from the environment can determine the interactions between the parts of the system that will give it, by itself, a certain weight. If there are similar data that concur together, the system will associate them without further ado.

“For example, if a certain state of affairs regularly causes harm to the system, the system will associate that condition with harm without having to know beforehand that the condition is harmful”. (17)

Memory is vital to understand the adaptive evolution of the social system or sub-system. Damage accesses the system without an adjective. It is simply a matter of proportion, of weight, that emerges as a threat or a risk to significant relationships between its components. Risk becomes systemic when memory – memory traces – is superior to forgetfulness in many parts.

It is not persuasive to argue that the flow of information prevents the prediction with a high degree of certainty of the result within the system. If, for example, the sub-system learns from the imported damage from its environment and establishes its supportability, the emergency will happen and reach a limit point simply because it cannot comply with the adaptation to more complex circumstances. And this applies to both the ecological, economic, or legal, and systemic tax risk. [18]

The system, in short, lacks control over the construction of its own power rules. But what cannot be ignored is its unexpected or unpredictable macroscopic behavior if microscopic factors initiate a chain reaction that will affect the entire system. The virus, the contagion, the cascade effect of the small, interrelated events stumble into a maximum situation of impossible adaptation.

The financial crisis of 2008 was avoidable. The big failure was general. Neither the public sector nor the financial institutions, credit rating agencies, or the total indebtedness of companies moderated their behavior when the red flags were displayed.

The failures in financial regulation and supervision proved devastating.

More than thirty years of deregulation and confidence in the self-discipline of financial institutions eliminated vital safeguards that would have helped prevent the catastrophe of the financial system. It was the case of shadow banking, of over-the-counter derivatives. Not only: the exercise of public power was absent either.

The incoherent response government to the crisis added to the uncertainty and panic in the markets. Finally, there was a systemic bankruptcy of responsibility and ethics. [19]

The same applies to climate change, to the bankruptcy of the ecological, social system. The predominance of profit over prudence, which was the cause of the 2008 financial crisis, is the penultimate warning that nature offers us to avoid the systemic crisis of the global environment.

The survival of people, of countries, of species, is priceless. Something more is required, a commitment to political, social, and economic governance, which addresses everything essential without exaggerated assignments. We are attentive to the fact that we face the dilemma of conserving the environment, which is probably the public and common good par excellence.

The spontaneous self-organization of the social system cannot avoid analyzing its adaptive evolution to reasonably anticipate risks in situations that inevitably lead to a final imbalance, the extinction of the system in question. [20]

Unpredictability is not a secret science. In law, taxes, financial activity, and climate change, no satisfactory binary code makes its realization inevitable: legal/illegal, fair/unfair, climate change / ecological destruction. The social system needs due attention to warnings of threats, risks, accidents.

Cooperation is a decisive attribute in the survival of the social system. The emergence of spontaneous self-organization is more dangerous, the less solidarity it finds in its path. Cooperation is one of the preconditions for adapting the system to changes. (21)

 

1.3. Precautionary and relative certainty.

The complex adaptive system emphasizes dynamic anticipation in the course of interactions between its components; neither observable nor can they be resolved in terms of stimuli or response. Predictions can happen, says P. Cillers, but without absolute certainty. [22)

The inevitable anticipation in the interactions of its parts forces in any case to discover the structure and processes through which it emerges at different levels of the system. Anticipation of unforeseen effects is a plan of minimum certainty, not a prediction.

The most insignificant certainty observes the future from now on to avoid unpredictability or complete uncertainty. The future is, in principle, unknown (Keynes).

What we do know is that uncertainty anticipates threats in the systems that plague their continuity. Uncertainty is a value that cannot be measured or quantified contrary to risk. [23]

Uncertainty cannot prevent current decision-making when there is a potentially broad forecast of change in the system in question.[24]

The complexity of the starting point can prevent changes or encourage them when it is vital for the system`s adaptation. Precautionary anticipation, the relative certainty of predictability, appears as the adequate response of the probability of results that are not known and their non-linear effects, unexpected, caused by the interactions of its agents.

Relative certainty implies examining the structures and processes of the system. Precaution encourages the monitoring of non-linearity to act when appropriate in the face of systemic transformations.

Continuous anticipation comes as a response to systemic uncertainty. This is evident concerning climate change, the financial system, pandemics, multinational companies, and digital platforms.

Constant observation from the public powers, public opinion, and citizens is mandatory in the face of any unexpected evolution of the complex adaptive social system or the actions of its agents according to specific behavioral profiles that lead to the emergence of structures that weaken or destroy it.

Worse would be the occurrence of systemic risk. And this is the warning that goes beyond just ecological uncertainty to establish itself in any complex systems that can weaken human security.

The message conveyed by the precautionary principle, first in environmental law and now in any of the threatening areas of human security, is that the absence of scientific and proven certainties does not justify inaction in the face of threats that may be irremediable if they become in risks. Prevention in the face of uncertainty addresses the precautionary public and social duty in complex systems.[25]

The consideration of prudence is essential in regarding complex systems of any criteria nature. It must be denied the public uncertainty as inaction justification, feeding the probability of systemic risk.

Quietism facilitates contagion and global cascading effect, v.g., the financial crisis 2008, the pandemic Covid -19, climate change, digitalization without regulation, erosion, and profit shiftings of international chains of value.[26]

 

1.4. Complex systems. 

The main feature of the system, whatever its nature, is the elements, the parts, that compose it and their interactions. Complexity is defined by the mass of matter, energy and information exchange with the environment, orienting its adaptation or lack of adjustment through reciprocal influences. [27]

The complex system is decentralized, non-hierarchical, highly connected in its component elements, and casual surprise due to the influence they produce among themselves, on each other, and with the environment.

The complex system is random by definition, and its stability can be broken by any unexpected fact or event, endogenous or exogenous, forcing it to adapt or destroy. The crisis becomes systemic because it puts its entire architecture in check, and then the system resists and adapts – it is resilient – or disappears. [28]

 

1.4. 1. Complex adaptative systems.

J.Holland  introduces the concept of non-linear adaptative networks or complex adaptative systems.[29]

The CAS (complex adaptative system) is a network of agents that act in parallel and interact with each other, either through cooperation or competition. Each level of organization represents agents who are, in turn, steppingstones for agents at higher levels. The system is self-referential based on their experience or learning and can anticipate the future.

“A CAS is a complex, self-similar collectivity of interacting adaptative agents.”

The CAS (complex adaptative system) refers to systems that involve many components, agents that adapt or learn to the extent of their interactions and stand out in four properties.

-Combination. It is the way of grouping individuals in a population, in species, and species in a functional group. It is a way of recognizing the similarities and differences in the agents to know their forms of organization.

-Non-linearity. The interaction rules change as the system changes through fortuitous or accidental, surprising events, creating resistance to change or continuity.

Any economic, social, political system, however simple it may seem, is a complex system. The predicted properties are common to a broad scientific record, both natural and social or economic.

It is a form of spontaneous self-organization that oscillates between stability and chaos. That depends on endogenous or exogenous oscillations that, although insignificant, can induce profound changes in connection with turbulent environments. The complex system is non-linear; that is, it does not equal the sum of its parts.

Precisely, the difficulty of predicting the results of the system can be altered suddenly by minimal changes in the interactions between its elements that promote disproportionate and unpredictable systemic transformations. The consequence is that departing from the initial circumstances that allow the ordinary and regular functioning of the complex system leads, without the opportunity for prediction, to change, be it due to chaos, emergency or catastrophe.

-Diversity. The diversity and individuality of the components identify points of combination that, according to their trajectory, can be configured as outstanding elements of resilience or collapse, novelty or resistance to change, stability or imbalance.

-Flows. The interconnection between the agents cannot exist without information flows between the parts, which turns a casual community into an integrated and self-organized set. The interaction regularity or irregularity in flow between units denotes the expectation of regular change or continuity.

 

1.4 .2. The complex adaptative system of economics.

WBArthur, Steven Durlauf and DALane were the initiators of a complex approach to the economy and its changes over time, along the lines of Jh. Holland, on non-linear adaptative networks.[30]

The description brings together six factors.

-Sparse interaction. What happens in economics is determined by many possibly heterogeneous agents acting in parallel. The action of the agents depends on the activities anticipated by a limited number of other agents and on the joint state created by them. Anticipation is the origin of the structures that promote changes, alterations, surprises of the system.

-There is no global controller. Interactions are not under the control of a global entity. Rules result from mechanisms of competition and coordination between agents.

-Cross hierarchical organization. There are different levels of organization and interaction. Units at one level serve as building blocks for units at the next higher level. The system is more than hierarchical, including interactions across groups (associations, communication channels). Units at one level combine the production of drive to the next higher level.

-Continuous Adaptation. Behaviors, actions, strategies, and products are continually reviewed. Adaptation is continuous as the individual accumulates experience and learning.

-Perpetual novelty. Niches are continually created by new markets, new technologies, new behaviors, new institutions. Creating a place serves to develop new ones.

-Dynamic systems out of equilibrium. The economy operates far from a global equilibrium because new niches, new possibilities are continually and regularly created. They are adaptive non-linear networks, e.g., nervous systems, immunity systems, ecology. The structure and procedures allow the emergence of the structure through different levels of an organization. [31]

Anticipation is one of the conditions for the operation of the complex system because its sudden result can lead to another situation than the expected or probable one, ruling out that the new is always better than the previous, just because it is different.

P.Cillers lists ten characteristics of the complex economic system, which complete the above description.

The economically active agents are usually millions; people interact with each other; the interaction is non-linear; the interaction between the elements is based on the neighborhood or proximity of interests; the agent’s activity can produce positive or negative results in itself. The economic system is open, a continuous flow of goods, money, information; the economic system is never in equilibrium; its history influences the economic system; the economic agent acts according to his knowledge, without knowing what others are doing.

P.Cillers points out a relevant line of the question when he affirms that the complexity of the economic system does not consist of the different types of things that compose it – state, companies, societies, people-, but in the richness of the profiles of the interactions between people. Indeed, it is not the institutions or the entities or organizations that count in the complexity, but the interaction between people, in the coincidence of interests and objectives, without an orderly global direction. [32]

For KWKapp, the economic system is open and cannot be isolated from power, property, capital, classes, of nature, and people. But, in addition, it sponsors the theory of complexity in its own way, starting from the idea of ​​interactive circular interdependence within a cumulative process of causality in social relations.

The parts of the system interact and influence each other. Social and unpaid costs that move on society integrate the economic processes that link production, natural and social environments, and people. They are the result of the interactions of related factors that order the socio-economic processes. The processes are causal, and their character is dynamic, cumulative, and self-organizing. They go beyond the concept of neoclassical balance, which does not exist. [33]

The equilibrium theory fails to incorporate the cumulative and circular nature of the economic process, which prevents knowing the critical thresholds from which systemic risks can derive. [34]

The paradigm shift implies recognizing that economic processes are not still in equilibrium, but are constantly moving, due to the interaction between their parts and in the previous direction. Circular causality accumulates and accelerates the speed of change. For its understanding, nature and society must be embedded into the market. [35]

KWKapp anticipates the full complexity of all the factors, whatever their origin, that influence the results, renouncing a reductionist version of equilibrium of the market economy. The totalizing economy includes the economy of nature and civic society.

 

1.4 .3. The complex adaptative system of the ecosystem. 

The complex system has a profitable use in ecology. There is no stable balance between nature and society. The rule is uncertainty and the discontinuity of the system in the face of disturbances and shocks. Systems are not predictable, nor are their processes mechanical. [36]

Levin points out that complex structures and interaction profiles can originate from disorder through simple directives that guide change.

-Sustained diversity and individuality of the components.

Biodiversity, for example, in environmental matters, is essential for the adaptive evolution of the system, so it is necessary to know what sustains it, its resistance or extinction and the recognition of its qualitative importance in the preservation of ecosystems. [37]

In the environmental sphere, diversity is an element of ecological, social systems, resilience´s be it about the diversity of species, people’s opportunities, or economic options.

Diversity enables ecological and human systems to respond and adapt to all kinds of changes. Globalization threatens diversity processes and weakens responses to unexpected events and, in general, resilience to shocks or stresses associated with climate change).

The diversity of elements of a system favors its capacity to respond to disturbances. Resilience is strengthened if the entities or things that make up the system perform similar functions: redundancy is a positive adjective because it allows the continuity of the process and if the response derived from shocks or stresses is not uniform but different. (38)

Biodiversity is essential for any ecosystem. (39)

Biological diversity is inseparable from the ability to survive changes in systems forced to adapt. Its complexity does not require the failure of all its elements, but a few or one of them. When complexity declines, it does so because one of the elements breaks down and infects the system as a whole.

Social, political, economic, cultural systems are complex by definition and reach the ecological reference: the adaptation of the systems fails due to the dysfunction of some of its elements, both to absorb unexpected or unforeseen disturbances and in their regeneration and subsequent reorganization – conservative or transformative.

Social processes can enter into a systemic crisis, such as the ecological, social system because they have no response to the lack of essential elements for their structure, which do not have to be in their entirety, but rather determinants for resilience. [40]

The ecological diversity highlights the importance of all the factors – in this case, biodiversity – that can contribute to the construction or destruction. In brief or offer threats to its stability or adaptation to hocks or tensions. Diversity and vulnerability are relevant to the ability to resist, change, and start over.

-Localized interactions between the components.

-Self-organization can guide systems out of equilibrium since the relationships between entities are non-linear and subject to change. An autonomous process that chooses among the components, based on the results of the interactions, a substring to replicate or improve it.

Complex structures and processes and the interactions of their units can arise from disorder by making their own rules of action that guide change.

Self-organization refers to the fact that macroscopic properties arise from the interactions between the microscopic elements that influence the costume of the interactions and the system’s subsequent state. Disorder as an expression of self-organization refers to the systemic crisis far removed from the centrality of balance until that moment. And that it can originate different adaptations to conserve or transform.

The interconnection between the units or agents of the system is unpredictable, and they feed the system as a whole which, in turn, feeds the parts. (41)

The complexity of socio-ecological systems stands out for their uncertainty and directly relates to their resilience to absorb or transform unexpected disturbances or systemic events. And adaptation, according to Levin, essentially involves the conservation of heterogeneity (diversity).

 

1.4 .4. The complex network system. 

The network is the new protagonist of complexity. Ecology has highlighted the emergence of new forms of intra-system adaptation connected with the resilience of ecological, social systems. Its principles are based on complexity theory but emphasize the behavior of elements, agents, network systems.

The stability or instability of the system depends on the topology of the network and the strength of the interactions of its agents. The economy reflects the dynamic interaction of an indefinite number of agents. The systemic behavior of the total is difficult to predict. The 2008 financial crisis was the consequence of systemic risk in the network interconnection of global financial entities.

Epidemiologists calibrate the true potential of spread in systems of related entities to identify contagion and relevant infection groups to build network barriers that stop the spread of the epidemic or pandemic or, if they fail, as in the case of Covid – 19, arbitrate alternative solutions until the vaccine.

The network is an interconnection in its purest form and its value and devaluation reside in the number of agents of nodes linked randomly to each other.

The network relies on the nodes or nodes and their interactions (edges or links). The node or node can be of high or low degree, depending on the number of connections, which has many or few links.

In its most elementary definition, the network is supported by two concepts: nodes, as only parts and the links between them; the consequence of the relationships between nodes and edges. A node can have one or more links; the number qualifies the degree of relevance: from the one with different and multiple connections to the one with one or few.

The network can be robust or fragile, healthy or sick, resistant or vulnerable. The network is strong when its performance is not altered, even if nodes or connections are eliminated.

The network can be sick—the contagion results from infected nodes that spread the disease. The most connected nodes, the high-grade nodes, spread the contagion widely, and the low-grade ones infect the most remote areas of the network (” small world property ” or the revenge of the local that can transcend globally).

The network is resistant if it has in itself the ability to regenerate and adapt to change under the pressure of environmental disturbance.

The contagion process, worth insisting, implies that the infected node travels over other agents connected in the network, cascading so that each one of them is out of the game until the ultimate failure of the system. The agents are the nodes and the ties, e.g., banks that lend or invest together.

The probability of failure of the node, agent, grows with the proximity of failures in the vicinity of the node, other agents. The contagion process becomes unstoppable.

The complex system in a fragile, diseased, and vulnerable network feeds the systemic risk: “a macroscopic property of a system that emerges due to the non-linear interactions of the agents at the microscopic level.” [42]

The network can suffer from systemic risks of various entities and the spread throughout its system and neighboring systems that represent a global pandemic in all its dimensions in terms of easy understanding.

It would be a mistake to understand that systemic risk is a disappearing system´s abrupt and unique final stage. The most widespread is the production of minor modifications that move the system away from its initial circumstances, precipitating it into catastrophe.

Adaptation is the measure of the resilience of the complex system; what can happen is that the adaptation is gattopardista (Lampedusa), that everything changes so that nothing changes or transforming. And in the trilemma, three protagonists play: the large company, the market, and the State, bearers of contradictory or opposite interests.[43]

The network descends the worst of today’s threats of complexity: the cascading failure of digital systems.

 

1.4 .5. The complex adaptative system of the digital platform. 

The digital platform is indivisible from cloud computing, Big Data, computer power, and algorithmic power. The platform appears as the mercantile establishment of organizational capital, design, and coordination architecture, the summary of central governance and hierarchical digital: the storage vehicle for data ownership and manufacturing of predictive products.

The creation of value comes from outside the system, from users and complementors. The platform’s ecosystem has data as key-value and the co-creation of users and complementors.

In a strict sense, the platform is a software system with the applications that interact and the interfaces through which they interact. The core of the shared functionality of the platform is the algorithm.

The two-sided platform means obtaining the data for free on one side: for its transmission on the other, e.g., advertising, financial system, transport companies, healthcare, letters of credit. The user creates the main source of value; but also, the complementors. The latter are victims of the difference in economic power in their dealings with the platform, so, in the end, it would not be an exaggeration to consider them skilled workers because their applications are either copied, when they are successful, they are bought or at the limit, they are expelled from the digital market. (44)

A dictatorship that can only be described as benevolent by default, the platform is the regulator and enforcer of compliance with its law, the locked and black box power of algorithmic authority.

The platform is a “legal world in itself” (Santi Romano), with its territory, population, and virtual space. Cyberspace is not real space. The algorithm is proposed as a source of normative fact apart from the legal norm.

Technological innovation turned into a functionally sovereign power under algorithmic authority, uncontrollably replacing public power and law. The norm is the algorithm.

There is a systemic digital risk concentrated in content providers that probably derives from the same assumptions of the financial crisis: few large companies provide global content basically in conditions of dominant position in deregulated markets. Systemic risk is platform risk because their falls or shorts could drag the catastrophe to the networked system of information and universal knowledge.

So far, we have witnessed short-haul incidents with High-Frequency Trading computers, momentary interruptions of services, or unintentional interference with other complex systems. The global shutdown of digital platforms could be catastrophic.

The infection of one agent puts pressure on nearby nodes, which, in turn, spread the disease over others, causing a cascade effect, which sees one platform fall after another. It is not possible to verify to what extent the digital oligopoly accelerates the general systemic risk. But what we are sure about is that the exercise of its power and governance prevents it from addressing small fluctuations during its evolution that lead to a collapse in search of the most significant profit in the shortest posssible time.

Self-correction by the datapolies themselves is implausible, as with the financial system before the 2008 crisis. It is as if it asked them to commit suicide. But it is a speech of tremendous effectiveness because it repeats supremacy ad nauseam, not only economical but intellectual, which is neither proven nor evident. It is a systematic rejection of public and social intervention, with weak arguments regarding its traditional ineffectiveness and, even more, the inability to understand what is happening in the digital world.

High-speed software was one of the triggers of the 2008 financial crisis. Information technology provided instant transmission, interconnection, and speed of transactions in real-time. Here and anywhere.

Digitization allowed the simplified commercialization of financial derivatives. The global offer of computer programs did not require the investor to understand financial mathematics or algorithms, and, above all, it was precisely uniform for everyone. The global financial capital market explosion would not have been feasible without financial derivatives and digital marketing.

Now, the development of the digital platform is going in the same direction. But on a broader, sustained, and continuous scale. There is no spontaneous self-correction of the markets, and the market’s lack of regulation and supervision will feed the next digital crisis. Financial technology invades the financial system and advances new concerns about its global stability.

 

2.The complex adaptative legal system. 

From a sociological point of view, the law is a technique of social control and social coexistence that do not always coincide.

The individual behaves as a consequence of her tensions and those that result from the environment. Everything that affects her actions and is mutually interdependent with her motivations influences her actions. Human behavior is a function of the person and their environment.

Unlike other complex systems, the legal system suffers from an explicit dependency on the environment and struggles to preserve its identity that justifies its separate and distinct existence.

The starting point of the complex system is the interactions between all the people. The exchanges are the influence of some on others and their effects on the system as a whole.

The integrated interaction between the parts of the legal system instructs or destroys its future. The system’s hallmark is the interaction between those in its territory and whose behaviors do not enjoy unlimited information, but only   necessary for itself and its purposes.

The parts of the complex normative legal system do not consist of different types of matters- legislation, judges, Administration, and individuals-; but in grouped individual agents that form the systemic phenomenon and the interactions between them and with the system.

On the one hand, control tends to preserve a given situation, basically through the coercive function.

On the other hand, social coexistence imposes the dynamics of social reality and acquires a purposeful value, of transformation, of new balances, whenever it feels or senses, foresees or warns behaviors that introduce the irregularity or deviation of the dominant social behaviors.

Interaction responds before to the pre-existing principles and the environment than to the written rule of all or nothing. [45]

The legitimate effectiveness of a legal system lies in its moral order. Its acceptance conditions the system’s stability and the consensus on how its production and application is.

The legal system foundations are the principles and the values. The system’s resilience depends on them. The community history, culture, social and political aspirations show the principles and values moral dimension.

The less moral quality the legal system possesses, the more its norms will not be applied effectively or legitimately, questioning the government’s right to govern.

The power of the government lacks effectiveness if it only relies on coercion. The exercise of power requires recognition of its legitimacy and trust, which involves the community’s consent. The governance entails less coercion intensity and more social approval.

One goes to legitimacy and effectiveness as a necessary condition of the complex legal system from the principles and values. Still, it is not complete without respect to integration and social diversity.

Arbitrary distinctions between citizens are a source of radical and unforeseen changes in the system’s functioning because it is a sign of emergency structures of partiality, preference, prejudice, privilege, favoritism. (46)

 

2.1. Integration and Diversity. 

Social diversity requires to be recognized, same as biodiversity, which means that people are more disadvantaged in the vulnerability scenario than others, be it for ethnic, racial, sex, religion, extreme poverty reasons.

The phenomenon is not alien to the dependence of the ecological, political, social, economic, cultural system on globalization. Globalization supposes the paradox of risk to national states, to their public, political, social, and cultural systems.

The loss of diversity due to connection to external factors causes cultural standardization, standardization of welfare options, and, as a whole, the weakness of the system, whatever it may be, to confront the unforeseen events that attack it.

The loss of diversity, ecology teaches us, has immediate effects in the legal context because it identifies the least resilience to colonization by external threats, and just as the vulnerability of the most disadvantaged hinders the principle of human security.

The citizens of a society are social beings in a particular identifiable and irreplaceable spatial and political framework, so people communicate and connect activities through the language.  It is one language and not another that gives value to coexistence, and this exclusivity does not have a reductionist or discriminatory character but a sense of belonging. The language context is the localization text. The text is a natural resource subject to the speaking subjects’ social uses, education, cultural, and economic promotion.

Its impoverishment at the favorable linguistic levels of society weakens the public resilience and the national social, economic, political system. The conservation and continuity of the language are part of the primary natural resources of the community.

The mechanisms of inequality are instruments of exclusion of the parties because of their diversity. They deny the inclusion of parts for the sake of other particular identification criteria. There are parts of the system that are equal to others for position and possession of capital in the social sphere, not only economical but also cultural, social, symbolic. Exclusion expresses the systemic and environmental vulnerability of the system. (47)

The frustrating interactions between the parts in a system cannot have positive consequences because they weaken it and make its components more fragile.

Neves introduces the criterion of social integration of relevance for any social system, particularly for the complex legal system and the tax systems.

Integration is reducing the person’s capacities for an equitable path to public and social goods that make their situation subjective as an individual due to social inequality or lack of power to do so. Some parts are included, while others look irretrievably excluded. (48)

Injustice compromises the interaction of the parts of the system and the reproduction of the legal system itself. It is a legal system designed from the outside to endow the strongest with invulnerability and increase vulnerable marginalization.

The legal system of norms and values ​​and principles is complex because it is made up of many elements or parts, provided that its universality includes all the factors that make it up.

Without integration, there is no universal legal certainty. The effects of the law and its legitimacy suffer from a defect of origin: its recipients are not all to the extent that it does not include those who are not recipients.

Integration breaks diversity as a unifying element of the system.

Diversity is fundamental for the adaptative evolution of the system, so it is necessary to know what supports it or conspires against it, its quantitative dimension of resistance or extinction, and the recognition of its qualitative importance in the preservation of the complex legal system.

Exclusion alters the dynamics of interactions between the components of the network. The isolated individual lacks significance in itself. Systemic meaning derives from activity profiles that involve a large number of units and their interrelations. The excluded rotate in a vacuum without finding their place in the system or the environment. The over-integrated do not differentiate them from the landscape, the environment, the society in which they are installed. The excluded are invisible.

The system dynamics lose the influence between all the components because they cannot influence or be influenced by others, and they inhibit the feedback of their loops in the interactions. There is no connection between the beginning and the end of the action, and they distort the direction of the system.

The diversity of the components identifies points of combination that can configure as weakening or strengthening elements of resilience or collapse; of novelty or resistance to change, stability or imbalance, by their inclusion, but which, with their exclusion, remains outside of all systemic rationality. The excluded are not part of the system, nor is the system part of each of them. They exist in society, but without socialization and integration, in part of their person.

The capacity of the over-integrated components gives them the difference of their infinite capacity for interactive relationships, superior to the sub-integrated ones. The degree of integration is money, power, privilege.

 

2.2. Rules of law effectiveness and non-linearity. 

Positivism is not enough to describe the complex legal system. The law is more than a calculating machine. It does not bring together all the elements that suffer from its effects.

The rule of law is applicable in an all-or-nothing form. The recipient must comply with it in its entirety or violate it entirely. [49]

A.Falzea defines the norm as a rule on facts structured on the anticipation of an event and the prescription of an action conditioned to the verification of the event.[50]

There are mandatory rules and others that sanction non-compliance. The primary rules contain the command, which imposes duties on its recipients. Secondary rules are those that provide for sanctions. The rule is effective when the sanction is implemented for behavior contrary to its mandate, or its addressees observe it.

It is a notion of effectiveness reduced to repression, to sanction. Applying the law is equivalent to using the sanction.

The legal system is not only coercion. On the contrary, it needs individuals`s spontaneous or quasi adherence to the norms and principles that inspire it . It is obedience based on legitimacy. Mass non-compliance would refer to substantial disobedience or detachment from the legal effects of the system, its rules, and principles, or the disintegration of the components based on criteria of wealth or income, power, or privilege.

The interactions between the parties, even the non-integrated ones, are non-linear, and their dynamics can collapse the legal system. The legal name for non-linearity is the effectiveness of the rules. The ineffective norm is a non-linear norm without a function.

Effectiveness is broader than efficacy: the ability of the rule to guide the recipients as a model to guide its practice. The subject always has the opportunity to adjust or modify his behavior without breaking the legal mandate or failing to comply.

The effectiveness of the norm to configure human actions cannot be conceived only as a punitive method focused on the violation of the law and secondary rules.

Effectiveness is the ability of the law to generate social, economic, and legal effects that transcend the punitive horizon.

The effectiveness of a legal rule encompasses evaluating its legal, social, political, and economic effects from the perspective of the users and the officials in charge of its application. Effectiveness resides in the consequences that result from the use of the rule of law. The impacts of the law, its results, wanted or not, originated by legal norms.

The fusion of the effectiveness and the effect of law identifies in one the legal significance. The effectiveness as comprehensive of the social effects is a way of self-reflection of the legal system.

F.Rangeon , argues that the law is not homogeneous but heterogeneous. It is diverse according to the multiple needs and interests of the recipients and continuous creation. The evaluation of effectiveness changes in each time, place, and people effectiveness needs to assess diverse behaviors of different people.(51)

The effectiveness refers to applying the law and protects the social, legal, and non-legal effects directly attributable to the legal norm. In a broad sense, its significance is not satisfied with evaluating the divergences between actual and foreseeable impact. Still, it needs to consider the unforeseen, unintended, or even the inverse effects to which they were intended and the individual behaviors confronted with the general ones.

F.Rangeon limits the extension of the rule’s effectiveness, its effects, and some hypotheses, such as the rejection of the law or its avoidance, understanding that they are assumptions of ineffectiveness rather than effectiveness.

Precisely, V. Demers, extends the effectiveness to any of the social effects likely to be generated by a legal norm. It is how the law exercises its regulatory influence.

Law is a mechanism of social regulation, a determinant of social relations. Effectiveness and effects are synonymous. (52)

The factors of effectiveness or ineffectiveness illustrate the non-linearity in the legal system. The changes in the effects, all the consequences of a norm or regulation, can lead to unpredictable interactions between the components or recipients, directed to unexpected emergencies, on variables beyond their control.

The norm`s effectiveness or ineffectiveness, the non-linearity, avoids facing those interactions that could result from this intentional breach of its legal effects and ousting from the system those who are excluded from its activity.

The interactions produced by the effectiveness of the norm are non-linear. Limited or inadvertent effects can cause broader impacts, and the combination of the parties’ profiles can lead to behavior and system change.

An innocuous legal intervention can collide with the elements included and compressed in the system and stimulate the instability of the precarious situation without cause. But there are no accidental explosions. Instead, they are the consequence of multiple factors that were not considered, making them difficult to predict.

The legislator neglects the effects of his normative production, ordinarily motivated by other priorities, be they ideological, economic, or social, which ignore the emergence of new interactions in the structure of the legal system.

Effectiveness requires considering the elements of each tribute: political, economic, properly legal, and technical. Inherent ineffectiveness is the point of synthesizing all the law’s effects, including value judgments, history, the idea of ​​justice, equity, which are in no way strangers to the law.

Effectiveness implies knowing the real significance of the legal norm. This is particularly true in public law, social and environmental law, and, obviously, tax law. Effectiveness implies the acceptance of the permanent creation of the legal field. This goes further beyond the formal cult of the text and the reduction of explanation to the past—the renounce to the dogmatic historicity of the norm and facing the new emerging problems.

The formalization of the law is the most successful modality of neoliberal thought (Hayek). It is a law without purposes or ratio legis; fixed and stable beyond its reasonableness, which must not be flexible (regarding the effects produced, a linear law. (53)

Compelling social reality appears as the antidote to the pure theory of law, excluding any reference to history, economics, politics, and the social function of legal norms.

 

2.3. Legitimacy and self – organization.

Self-organization implies the capacity of systems to organize themselves in states of emerging complexity at the organization level.

The emergence of complexity admits two conceptions.

On the one hand, that of J. Holland, whose initiation work is based on formal models … “atomistic building blocks… whose interactions are determined by a set of formal production rules. “[54] Formal rules are fundamental in complex systems.

On the other hand, P. Cillers. argues that complexity cannot understand full rules or standards. The system’s rules are not an appropriate model for complex systems. Complex systems are” ‘the result of countless, local non-linear, non-algorithmic, dynamic interactions, [which] … cannot be described entirely in terms of a set of rules’. [55]

The set of rules cannot explain the complex system that regulates it. It loses its essential characteristics of incomprehensibility in the way or interaction with the environment and adds rigidity.

The rejection of rigid rules does not prevent the presence of other kinds of rules that preserve the flexibility of the interactions between the components, such as morbid rules, orientations, directives, which precisely indicate values ​​or principles embedded in the behaviors of the individuals.

Without prejudice to Ciller’s judgment, Holland’s position fits better with the legal system because it has the characteristic of presenting itself under a predetermined series of rules (of values ​​and principles) that are useful, even in their failure, to interpret the laws. Dynamic laws under which the system changes from one state to another.

Those rules of the interaction between the components of the system and the environment foster, in a positive or negative sense, the unforeseen or renewed expectations of change under limited circumstances. These are restricted generation mechanisms aimed at producing outputs, actions, and information to produce inputs. These mechanisms, which are rules, are connected in a network that establishes its fixed or transitional location, such as generation restricted. 76

Finally, Holland emphasizes two common aspects in the theory of the complexity of emergence. First, emergence in systems can derive from the behavior of small units bound by simple rules. Second, that complex systems are far from equilibrium offer transitional effects of persistent profiles and intrasystem modifications, which make it challenging to optimize. Balance is impossible.

The self-organization of the legal system supposes the ability to adapt the design concerning changes in the environment. The legal system is an open system linked with other social systems that incite it in one direction or another.

Legitimacy is the mechanism that generates restrictions on the structure of the legal system that enables it to receive, encode, transform and store information from one party and react to information through outputs from another.

Non-linear interactions between recipients support the autonomy of the legal system and its history, including modifications of systemic structures. Legitimacy is the source of the input and the cause of the output. [56]

In all its aspects, legitimacy is a masterful way of spontaneous self-organization of the legal system in general and the tax system. Legitimacy means accepting authority whenever it is justified, both by social acceptance and by the exercise of authoritiey whenever it is justified both by social acceptance and by exercising the competencies”. [57]

Without legitimacy, relationships and interactions between units emerge dispersed, contradictory making up the system, which can cause systemic risks for adaptation to the environment. (58)

Emergency becomes an immediate result of conflicts that could have been avoided with a particular precaution and whose consequences place the system itself on the edge of the abyss. Legitimacy is the mechanism that makes the legal system resilient because it can adapt its internal structure based on evolution (self-organization).

P.Cillers defines self-organization as “a process whereby a system can develop complex structure from fairly unstructured beginnings” [59]

The process of self-organization, in short, consists of the passage from unstructured beginnings to endogenous structures consisting of transforming the information received into outputs. The structure is a factory of inputs-outputs of the system that is deployed independently of the centralized and hierarchical control and whose emergency is, at least, unpredictable because the differences are neither accurate nor homogeneous.

The structure is essential, but it is not enough. Cillers insists on the history of the self-organized system. The temporal dimension is the one that builds memory and forgetting. Or, better still, the signals, the traces that had effects on the components of the system, even if they have no particular meaning for them.

“Use it or lose. Self-organization is only possible if the system can remember and forget.” [60]

The observer of the complex system cannot conclude the continuous adaptation of the system because he is incapable of predicting the future. Uncertainty offers an answer to the anticipated actions of the agents because the end of the system is unknown since it depends on its structural evolution and history.

The position of P. Cillers is illustrative: considering the future, although we have no idea how it will be, must be assumed now. We are obliged to take responsibility for the future systemic effects, although we do not know what they will be, nor can we wait to see how. There are emerging rules, and here the author accepts them from a complex of relationships whose structure can allow us not to follow them. Those systemic rules that we consider harmful can be broken, discarded, not applied.

The breaking of the rules allows formulating a corollary of legitimacy that directly concerns the self-organization of the complex system that finds limits, exceeding which puts its survival at risk. Anticipation is peremptory for the adoption of measures for the protection of human security. It is the moment of meeting the legitimacy and the effectiveness of the legal system. The uncertainty derived from the structure and history of the complex need’s anticipation of the precaution.

Lack of certainty is no excuse for making decisions that prevent systemic risk, even breaking your own rules.

 

2.4. Incomplete complexity.

The theory of complexity is insufficient and incomplete to explain social systems and, therefore, legal and tax systems.

On the one hand, there are individual elements in the very layout of the complex system that lack the means and sufficient capacities to fulfill their personal needs, while others have it sufficiently. The intersection between exploitation and domination between those who can and those who cannot is difficult to avoid. Another thing is that its systemic relevance is not assumed, for pure reasons of respect for the theory itself, as if it were chemical, biological, or physical.

On the other hand, it is difficult to ignore the presence of a meta-level of public, political, and economic direction, which exercises physical and symbolic power, precisely, aimed at ensuring social domination and control.

Complexity must include all those elements –asymmetry, competition, power-non-linearity, external control-, which will enable us to understand the social system in question from outside the system itself to reveal its gaps and complete them. In particular, symmetry-breaking that deteriorates systemic homogeneity comes from absent or incorrect connections whose cause cannot be explained solely in terms of spontaneity.

P.Cillers critically holds three controversial claims.

First, that power relations do not imply relations of exploitation or domination. The system works by non-linearity, asymmetry, power, and competition. The exploitation of relationships is not in a symmetrical space where power is equally distributed. [61]

Second, it defends that the interactions have a short scope since there is no meta-level controlling the flow of information in the system. This does not exclude the influence between different groups of elements on each other or each other. The connections are not linear and can be propagated in the system even if the interconnections with other parts are occasional.

Third, the individual elements ignore the behavior of the entire system. The person cannot absorb the system as a whole and therefore control or understand it. (62]

The complexity theory eliminates the different forms of power emerging as property of the systemic processes of social order concerning the pre-eminence of action of some elements in the competition. Besides, it doesn’t assess the determining presence of the meta-level, political, public, economic agents. And it transforms people into mere elements or undifferentiated units of the social system.  In Hayek, the individual is not the unit of study but the object of the business sovereignty in the market.

 

2.5. The market. The partial complexity.

FAHayek is in charge of transporting the theory of complexity to the functioning of the market. The mind and markets are complex systems. Thus, individuals appear as units, as elements, of a self-generating order and self-generating structures in an automatic system of interaction based on the information and whose behavior is regulated by law.[63]

Individuals, the units of the market system, ignore much of the rules that guide them that they do not know. The observer does not place any confidence in the intelligence or intuition of the person; to the maximum, he can aspire to the elaboration of ways of predicting his behavior. The simile in the animal world is the flock of birds that takes flight in an oriented direction, without its components knowing the destination or other hazards of its flight: an ability to navigate complexity without knowing it.

The person in the market system exhibits a radical ignorance of his actions and responds exclusively to the stimulus of prices. It is the price signals that tell people what to do. What matters is the purpose of the system, not the person. Arbitrariness is a requirement of the system, a form of preservation of the order, which is attributable only to the person’s disobedience to the price signals.

FAHayek uses the concept of the complexity theory of the negative feedback effect to explain it. The person receives the price as an external stimulus that he conserves, examines, and analyzes to formulate future decisions. The negative feedback is self-regulated and inhibits the person`s more generic expectations, such as injustice or inequality.

The main difference between FAHayek’s systemic postulates and complexity theory lies in identifying the key people for the market to function as expected. In other words, here, not all units or elements are indifferent. The category indicated is the entrepreneur, the owner of the means of production—the precise agent for market sovereignty.

The capitalist entrepreneur receives the impulses people send him and transfers them to the corresponding type and production volume.

The entrepreneur is the predestined person to make the market respond to price signals because he knows that the entire system and his luck depend on his success.

“The price system is a kind of machinery for registering change, or a system of telecommunications which enables individual producers to watch merely the movement of a few pointers, as an engineer might watch the hands of a few dials, in order to adjust their activities”. [64]

The spontaneous, self-organized, and intuitive market order is not enough without the law that guarantees its structure and process. Here, too, FAHayek departs from the pure theory of complexity. The law is the most crucial pinnacle in the design of the market system.

The legal design has a clear purpose: to prevent that public power, the State, arbitrarily interferes with the natural order of the market, the company, and individuals, according to their own will and under the influence of democratic pressure. Through an adequate and stable legal system, it is possible to prevent the eventual democratic omnipotence. [65]

FAHayek’s clearness makes it possible to fill in the gaps in complexity theory, its scope. The market system is the consequence of the spontaneous action of people, only guided by price information. The entrepreneur is the predominant market subject because it serves as a vehicle for consumer demands and responds to them, risking its survival with its mistakes. [66]

Competition needs laws to regulate the social and economic practice and serve as a prediction for recurring actions. But mainly to avoid the threats of democracy, defense of public power, and the redistribution of income and wealth.

Globalization appears as the closure of the model of the complex neoliberal theory of the market. The core is the prevalence of homogeneity of international mercatoria lex over the power of each State.The multilateral world order through the interdependence of multinational global and digital value chains.

Complexity cannot be complete if it does not include of all its human elements or the qualitative content of public, political, and economic power that discipline.

It is reckless to reduce the knowledge of any social system to the ways of interaction between the elements if the human security of all is not appreciated. The complex system should have something to say about people’s interactions, with themselves and with others, their backgrounds, traditions, ambitions in fields, and spaces of cooperation and competition, where the needs and abilities are not symmetrical.

Complexity aspires to a system without people or ideologies, and its end is that it is an ideology that distills people`s position, of power and privilege.

The complexity theory appears enlisted in the legal system’s attempt when it aspires to the unfortunate conception of positivism as a mode of construction as a universal, neutral world, independent of social, historical, and social pressures.

 

2.6. Pierre Bourdieu. The symbolic power. The complete complexity.

Complete complexity indicates another explanation attempting to incorporate all the principles and values ​​that complexity theory leaves out of social systems. It is a form of complexity whose narrative aspires to apprehend the totality of the actions of individuals, groups, economic interests, and public powers.

Bourdieu is our reference, an inexhaustible source of creative inspiration on society, people, power, and structures reserved for essential protagonists of dominance over others, be it economic, political, institutional, or religious reasons. especially on the ownership of symbolic power and the exercise of symbolic violence. (67)

Symbolic violence appears as the necessary continuation of financial illusions: invisible obedience to political power, economic and social, based on imposed and accepted social beliefs.

Six relational concepts support P. Bourdieu’s elaboration: social space, forms of capital, social field, habitus, symbolic power, symbolic violence, and the meta-state as justification for arbitrary legitimacy.

The starting point of the narrative is the social space of coexistence. The place where agents and groups occupy different and coexisting outer positions, their mutual relations external and proximity, neighborhood or restraining order, and order relations. It is the idea of ​​difference as a property of relationships and understood only with other properties.

Social space is a field of forces, alliances, conflicts, associations. Life, in short, is presented as an objective system of power relations.

The social space has as many dimensions as life – economic, educational, cultural, power-, based on the differences constituted by the active properties that confer power on its owner in each social field, under different forms of capital, (economic, cultural, social, symbolic).

The common trait is that the person’s wealth is not only of economic origin. Still, it can be derived from other equally valuable sources, which allow its accumulation and obtaining a yield, present or potential, whether monetary or not.

Forms of capital are the relational position between people in social space, and they can be different.

Economic capital immediately and directly convertible into money and institutionalized through property rights; the cultural capital that can be convertible into financial capital and that is institutionalized in the form of educational qualification, and the social capital that is the institutional connections eventually also convertible into economic capital.

Economic capital is the set of income and wealth that an individual or group possesses by inheritance or by ownership of the means of production. It is the door to acquire other forms of capital and, finally, the cause of power in the social space and the force of capital from another origin.

Cultural capital revolves around the cultural resources possessed by each person, in a straightforward approach to human capital, either by acquiring knowledge, know-how; possession of cultural property (paintings, books); or school degree and their quality of life and social habits linked to their body and embodiment.

The capital is the sum of resources that holds individual or group facing relationships, knowledge, and mutual recognition more or less standardized, linked to possession of a network of connections that provide a badge of belonging and support to a larger group.

Economic capital is physical or material capital, while cultural and social capital is expressions of intangible capital.

Symbolic capital is the intangible dimension of the person in terms of reputation, social prestige, founded on knowledge, and relational recognition. And whose content can be economic, cultural, or social. The recognition of the individual’s own and legitimate value but results from the perception of others, who know it and recognize its value and associate it in their habitus, which identifies or denies belonging (tastes, customs, uses, language).

Symbolic capital, that is to say capital – in whatever form – insofar as it is represented, ie, apprehended symbolically, in a relationship of knowledge or, more precisely, of misrecognition and recognition, presupposes the intervention of habitus, as a socially constituted cognitive capacity.”[68]

The person can transform different classes of capital into others—for example, the greater the economic capital, the opportunities for social capital and cultural capital increase. At the limit, economic capital is at the root of the other classes of capital, of their effects. The equivalence measure is the working time, considering that converting one capital into another requires the working time accumulated in the original form and the working time necessary for its transformation into capital of another type.

The value of the capital of each one also postulates their ability to exercise power, which is apparent in the proportion of the wealth they possess and are capable of mobilizing. The wealth creation in the field is a flow of goods and services, tangibles, and intangibles and allows to individualize its creators in the process.

The social field is the microcosm of the generic cosmos of the social space where, as a system, each group of similar agents or with coinciding interests meet durably and dynamically, according to the global volume of the capital form they possess and the composition. The identity in the field is, at the same time, the limit indicated for the exclusion of the different.

The field is a web of objective relationships between positions that fix their agents’ situation in the distribution of power or capital and depends on access to specific benefits at stake and their relations of domination or subordination with other positions: the social relations of power.

The objective relationships between the positions of its occupants in each field are specific and fundamental to the interests of other areas. Those who do not participate in the power game cannot even be understood allowing access to benefits or objective relationships in different positions, whether of dominance or subordination.

The field, says P. Bourdieu, works if people are willing to play the game, endowed with the habitus that implies the knowledge and recognition of the inherent laws of the game, of gambling. (69]

The cognitive capacity of the agent’s “habitus” is essential for the notion of field. Habitus is the intrinsic motivation that guides each person, their disposition to the relationship with others, with the group, the socialized subjective experience. At the same time, extrinsic motivation is the internalization of the person’s social position in their daily life.

The habit indicates the double vocation of the person, inward and outward in his relationship with others, explains his behavior differently and differentiated from the common principles of differentiation. It is a form of organization and representation of consonant practices objectively with the purposes of the person, but which are not the product of obedience to the rules.

The representation of the symbolic capital in the agent determines how it behaves and will be treated in a specific social context.

The field is a system whose limits are not crystallized into invariable borders but following the balance of internal power relations. The notion of field cannot establish once and for all what its limits are. However, like any complex system, it appreciates opening and closing codes according to its dogmatic choice and regime of truth. There are things and personas which are not included or excluded by themselves, with the exception the elements under discussion possess specific capital and can transform orthodoxy into heterodoxy.

The identity of the field is preserved to the maximum, which establishes the exclusion of everything diverse in origin, history, forms of capital, habitus. Inside the area, all the good and bad of the recognizable members as driving forces of its configuration appear.

“As a space of forces, a field is also a field of struggles for the preservation and transformation of the configuration of these forces or forms of capital. There are thus as many fields as there are forms of capital, and within each field, agents struggle for legitimacy, that is, for the authentic definition of what are to be considered the most valuable resources or, in very Bourdieu’s terms, for the monopoly of ‘symbolic violence’.”[70]

The question of Bourdieu is straightforward: how an order based on arbitrariness aims and gets to consolidate the legitimacy achieved.

The legitimate use of symbolic power is based on symbolic violence. It is soft, insensitive violence, invisible to its victims, essentially through the purely symbolic means of communication and knowledge, or better, ignorance. Note the proximity of Puviani’s concept of symbolic violence and financial illusions.

“La violence symbolique, c’est cette violence qui extorque des soumissions qui ne sont même pas perçues comme telles en s’appuyant sur des” attentes collectives ” des croyances socialement inculquées. Comme la théorie de la magie, la théorie de la violence symbolique repose sur une théorie de la croyance ou, mieux, sur une théorie de la production de la croyance, du travail de socialization nécessaire pour produire des agents dotés des schèmes de perception et d’appréciation qui leur permettront de percevoir les injonctions inscrites dans une situation ou dans un discours et de leur obéir”. [71]

Symbolic violence is the imposition by a power, public or private, institutional, or not, of arbitrariness, of an action that goes against the definition of justice in the strict sense but unconsciously binds the person to the system of constituted power.

The underlying belief is the conviction of the legitimacy of essentially arbitrary behaviors that hide the favor of some over others without the victims realizing it.

Symbolic power is not an innocent act, and neither is the violence it applies.

“The symbolic power as the power to constitute what is given by the enunciation, to make one see and make-believe, to confirm or transform the vision of the world, therefore the world; Almost magical power that allows obtaining the equivalent of what is obtained by force (physical or economic), thanks to the specific mobilization effect, it is not exercised unless it is recognized, that is, unknown as arbitrary. This means that symbolic power does not reside in “symbolic systems” under the signature of an “illocutionary force” but is defined in and by a certain relationship between those who exercise power and those who suffer them, that is, in the very structure of the field where belief is produced and reproduced. “[72]

In Bourdieu’s thought, words do things because they achieve consensus on their existence and meaning reflect the constituted order and impose themselves with all appearances of objective reality.  The symbolic power names and precisely defines each of the agents, and thus recognizing them, it identifies itself. [73]

Universal common sense is the least common and versatile of the purposes. It tries to reveal the arbitrariness implicit in symbolic power.

Injustice can only survive if the State’s symbolic power is not put into evidence and continues as an ordinary routine within the regular order of the facts of life.

The systemic risk is a crisis because transforms unfair things that seem natural. Systemic risk is a stated crisis of change. The crisis is the primary concern against the resilience of the symbolic power and the symbolic violence.

The crisis is a non-linear episode in our lives: pandemia, financial crisis, climatic change, digitalization, fiscal inequality.

 

3.The force of law. 

The force of law refutes the pure theory of law (H. Kelsen) and the foundation of ideology for legal science. The ultimate social foundation of law resides in symbolic structures.

In Bourdieu’s thought, the law is represented as a relatively independent social universe about external demands. Legal authority is a product and exercise from the State, the form par excellence of legitimate symbolic violence, whose monopoly belongs to the State. [74]

The legal field projects the effect of apriorization, consisting of setting the basic rule of the game for agents and institutions. The prior foundation is the acceptance as a truth of the equity of its principles, the coherence and rigor of its applications, in search of the effect of the system´s neutrality and universalization.

Access to the legal field requires participants to adhere to the production and reproduction of the universalizing position, which results from the division of labor between competitors, antagonists, and complementary, who function as classes of specific capital and are associated with different roles within the field.

It is a field that a priori preserves the cohesion of the habitus of the various interpreters due to the hierarchical discipline of the judicial apparatus, with the power to resolve disputes between professionals following current rules.

Competition in the legal field aspires to the monopoly of the right to say the law; a constant struggle for interpreting the agents invested with technical preparation of a corpus iuris enshrines the legitimate vision of the social world the judicial hierarchy decides.

There is no innocent interpretation. The rule`s real significance depends on the relationship of specific forces between the professionals, which will correspond to the link of the influence of the plaintiffs (or clients). The interpretation is never the solitary act of a judge, although it is the one that confers symbolic efficacy of legitimacy to the action, expression of the authentic voluntas legis.

The constitution of the legal field is inseparable from the establishment of the monopoly of professionals in the production and marketing of legal services. The legal field reduces plaintiffs, whatever their nature, to clients of qualified professionals.

Institutions help the professional monopoly by understanding the conflict incomprehensible to those not in that field, the non-specialists.

There is no judicial field, old or new, exempt from professional monopoly, instead of the profane party’s direct interest. Traditionally, the bases were commercial law and private law. Now, this is verified in the field of tax law, labor law, environmental law, and digital law. Each new field means the legalization of its operation and the satisfaction of legal needs through professional competence to offer its products and services.

The judicial verdict is the authorized, public, official word (Actes de nomination). It is a magical act because it achieves universalization without opposites. The vision transmitted is the only truth, an idea of the State, guaranteed by the State.

The form, formalization, is substantial for the universalization of the symbolic efficacy of law. It is what turns theory into regulated practice: practical universalization. (75)

The layman’s belief in neutrality and autonomy ensures the production and reproduction of law. The effect of universalization is, at the same time, an effect of normativity, from what is normally done, into a rule, what must be done.

The force of the form converts the symbolic efficacy acquired by the law into a social reality. The written norm produces an effect of homologation, a discourse that says the same for anyone. Some can take advantage of the force of the law and shape better than others: the law is folded alongside those who master the art of putting in shape and putting shapes.

It is not the magistrate, not even the legislator, but the group of agents who determine the construction of the legal field and the official representation of the social world that is for the dominant interests: an expression of universal, general normality, which condemns all the different, deviant, abnormal, pathological practices of the vision derived from the symbolic structure.

Orthodoxy risks with   the growth of the other news legal fields: public law, labor law, and, I add, tax law, antitrust law companies that allows adapting “the right to social evolution.”

The new State of social relation`s adaptation focuses on the criticism of the cult of the literal text, the exclusive priority of exegesis and doctrine, and the refusal to recognize the creative value of jurisprudence that does not intend to accommodate the norm to economic reality. The best protection of those dominated by the imposed symbolic vision of the world consists of developing within the legal field’s game structure the recognition of language and social reality and the representation of the new actors.

 

3.1. The force of tax law. 

L.Oats & G. Morris adopt Bourdieu’s approach in understanding the actions and motives of the actors involved in the fiscal field. The starting point is that their work is instrumental in understanding the emergent practice of the relational interaction of subjective experiences and the objective social structures that shape those experiences.[76]

The fiscal field is a game that reflects the competitive element of conflicts that occur within and between agents in the legal tax field.

“Struggles between groups within the tax field where participants are shaped and shaped by the game being played.” [77]

The main agents of the tax game are the taxpayer, the administrative authority, the politicians who draw up the tax code, the legislators who turn the proposals into law, the tax advisers, the judges who guide the different interpretations, the media that disseminate the news for the general public, in addition, teachers and researchers.

The conflict in the tax field consists of maintaining and acquiring some of the forms of capital, which will depend on the agent’s habitus and his position in the structure.

The Administration plays a double role: political and as a bureaucratic agent. As a bureaucracy, its capital lies in reputation, efficiency, objectivity, and equity. This is their symbolic power. The Administration may or may not guide taxpayers.

The complexity of tax laws outweighs many taxpayers, strengthening the cultural capital of the Tax Administration. The complexity creates the need to resort to experts, assist in fulfilling of tax duties, and minimize them through tax planning.

The beliefs of the tax field set the rules of the game: taxpayers may be reluctant to pay taxes, advisers act in the interests of their clients and possibly own interests. For the integrity of the tax system, the Administration shall be politically neutral. Still, if the collection activity prevails according to political will, it may lose neutrality based on its vocation.

The conflicts in the game reiterate the prevalence of the power to name, recognize and define the limits between compliance and non-compliance.

Symbolic power means the opportunity for actors with power and capital to manipulate the game’s rules in their favor, for example, through the interpretation of texts as a control mechanism for practices in the field.

Symbolic power consists of the ability to make arbitrary distinctions imperative and generalized.

An example of symbolic power is the reduction of taxes to improve economic efficiency. These arguments have a well-known matrix: small state ideology. The agents who promote this direction are in the best conditions to increase their power and capital, changing the game’s rules in their favor. The message is that this is a benefit for all, which is not true. (78)]

The “spectacle of the universal” (Bourdieu) imposes the State’s point of view as the only legitimate one. Globalization gives another dimension to the debate of universalization, especially in the fiscal field.

 

3.2. The game’s rules in the tax field. 

The universe of tax law, from its beginnings in the twentieth century until now, was guided by an essential effect of apriorization: the public tax power is an example of legitimate symbolic violence whose monopoly belongs to the State and whose logic is framed by law for the interrelations with citizens, experts, the bureaucratic administrative authority, the forms of economic, social, cultural symbolic capital of the market and the jurisdiction.

The game rules changed from globalization and neoliberal symbolic power, the force of all forces (Bourdieu). The public tax power is harassed and loses its political autonomy and its character of symbolic capital superior to all forms of capital in society. This means that the truth of the apriorization effect is a word in the hands of other social and economic factors, not the public State.

The structure of the fiscal field must be the meeting point and conflict of competence and alliance between the agents that participate under the forms of capital that they possess and are carriers. The positions they occupy in the field. The agents must accept as a premise that the public tax authority is, by definition, neutral and universal, unique. If the right to say the word changes, it also changes the citizen’s access to the bearers of the different forms of capital.

In the fiscal field, as in the legal field, the struggle of the agents is for the word. The relationship of dominance established by economic and social capital over the State supposes hegemony in saying the legal word, which adopts an extreme formalization, neglecting the effective meaning of the legal norm, its purpose, and spirit (ratio legis).

The real significance of the legal norms no longer depends on the relationship of specific force between the experts and their clients, confirmed by the Administration or, where appropriate, by the jurisdiction, except when there is identification and coincidence with the meta -symbolic capital goal captured from the State.

For its influence the tax industry builds a monopoly on legal, accounting, financial, and economic advisory services, even more than in other legal fields. Agents of complexity (Vito Tanzi) inspire aggressive tax planning. The professional and business social capital is allied in the search to minimize the tax of agents who demand it and contribute to its cause.

The primary function of the Administration is in the symbolic effectiveness of the formalization of tax duties of the taxpayers The Tax Administration must achieve the recognition of impartiality and objectivity in applying the law (symbolic violence) despite concealing its arbitrariness before those who suffer it.

Moreover, the bureaucracy is a player, understood as a category of an agent, whose cooperation with the specific forces of the agents promotes its advantages, be it professional, economic, social, academic. The bureaucracy has much to offer to the experts and their clients, and there is a lot to get. Institutional or structural corruption weakens the authority of administrative, cultural capital.

Submission to economic power and private symbolic capital makes a dent in administrative behavior that loses its strategic certainty to say right, both in secondary regulations and in the exercise of its technical discretionary power and the application of sanctions.

In particular, the art of putting the law into shape -regulatory rules, opinions, guides, rulings- and of putting the forms of its execution in space and time – conformity, non-conformity; sanctions and exemption from sanctions; precautionary measures or no, fractionalization and deferral of payment; statute of limitations and expiration.

The force of the norm is the force of the technical form, the cult of the letter without apparent purpose. It is the main instrument of excluding other agents who do not have the resources or the power to carry out their differentiation and do not have force within the fiscal field.

Euphemization emphasizes the social exclusion of the positions of taxpayers who are back to the symbolic power of language and lack technical and capital in whatever form to disagree with the symbolic reality of which they are subject.

The production and reproduction of tax law are universal, under a single imposed vision of the world. Either the social agents coincide or suffer the effects of silence and, obviously, the arbitrariness of which they are not aware.

The specific forces in the fiscal field also count in its favor, with the support of the jurisdiction. Jurisdictional truth is under the influence of other private advisors. Its expertise is notoriously inferior to that of the leading agents. Form upon form, the verdict declares the truth of the conditions of capital and dominant positions.

The taxpayers are:

First, quasi-spontaneous compliance taxpayers. Their positions have in common the precariousness of economic capital, although they may have a greater volume of cultural, social, and symbolic capital. They do not have the opportunity to access recognized experts – lawyers, economists, accountants, qualified assistance services – and the Administration acts on them without distinction, systematically, in automatic control mode, and in real-time.

The Administration acts with strategic certainty before the dominated and with uncertainty before the dominant. They are procedurally discriminated against, both in the administrative and judicial aspects, because the complication of the tax system, not its complexity, is discharged against them. Distributive, process and retributive justice is partial, subjective, and arbitrary. It is symbolic violence that works under a pact that those who suffer it ignore it as such.

Second, taxpayers who use the rules of the game of the fiscal field for the systematic breach of their tax duties. Their positions stand out for the capital they carry from other social areas, their social and symbolic capital. They have unrestricted access to advice and assistance from reputed professionals who act in their interest and, not at all, in the interest of the tax system’s integrity. Their function is to obtain the maximum benefit from their clients at the minimum amount of tax to pay.

This facilitates their administrative and judicial action based on their resources and applies to their non-compliance strategy. The Administration, whether for political or bureaucratic reasons, is contemplative and condescending.

All the legal certainty that occurs on minor taxpayers; becomes strategic legal uncertainty for the rich. The ambiguity in the administrative primary and secondary rules’ performance, a decrease in sanctions due to increased uncertainty, and an aggressive tax planning for the reduction of the checks and investigations of complicated tax avoidance and evasion procedures [79]

The master’s degree in the tax field is in the positions of the dominance of economic capital, emerging market forces, local and multinational companies, which are recipients of the highest volume of symbolic recognition and social capital.

Third, the informal economy, out of compliance or non-compliance, is excluded from the tax system, a mass of individuals lacking capital in any form who act among their peers or third parties in shadow activities. They are not under-integrated but isolated because they belong to marginalized social groups, degraded workers, immigrants, and unprotected services.

Tax law is stated as law by experts, the Administration, and the judiciary. Interpretation exasperates formalism, the worship of the text written with neglect of the principles and values ​.

The symbolic power of tax arbitrariness conceals a vision of the legal world whose protagonists have all the benefits without assuming any legal obligations.

The fiscal law crìsis denies the general respect for all kinds of citizenship and reproduces the origins where the citizen was a simple subject of the State.

The principles and values ​​of the tax law are trapped in the mesh of symbolic power. It is challenging to translate the rule of law on the ability to pay, equality, and progressiveness principles. The consequence is more inequality, regressiveness, and poverty of the most vulnerable taxpayers.

The tax system not only preserves the game of gamers who avoid or evade it but, in itself, causes the fiscal impoverishment of the poor. In practice, they end up supporting it. The fiscal impoverishment makes the poor pay higher taxes than the transfers and are frequently brought below the poverty line. Taxes are higher than what they receive from the public Treasury.

“A fiscal system can be unambiguously poverty-reducing, yet still make a substantial proportion of the poor worse off. This phenomenon does not only occur with regressive taxes: taxes and transfers can be globally progressive, unambiguously equalizing, and unambiguously reducing poverty and still make many poor worse off.” (80)

The paradox of the belief in the universality of the tax system explains the culture of ignorance. Those who barely show the ability to pay contribute more than those who possess the most and accept it like ordinary.

A.Jurow Kleiman is right when he argues that fiscal impoverishment violates human dignity because it damages people’s physical and emotional well-being and worsens their social exclusion; one would say that it directly attacks human security. [81]

The force of fiscal law, which was political, civic, and bureaucratic, depends on the positions and properties of the agents endowed with the most significant volume of forms of capital “according to a totally hermetic logic and inaccessible to the layman” (Bourdieu).

The adaptation of the fiscal field to another vision of the world would only have real meaning in the conjunction of the political (public) power of the State and other actors deprived of language.

The symbolic power of the State and other agents that condition it is an invisible power that prevails in the fiscal field with the unconscious consent of those who are subject through symbolic violence to ensure the dominance and privilege of one class over another the power relations in society. [82]

 

3.3. The symbolic power of the language.

The use of language plays an essential role in Bourdieu’s thought.

Language is not simply a means of communication but, above all, a mechanism of power. Language is a representation that has the symbolic efficacy of the construction of reality. The benefit of the linguistic market is the distinction obtained by the individual in each linguistic exchange through the work of their linguistic capital. And this starts from creating a differential value between the so-called vulgar language and the legitimate practice. [83]

Language is in the relational position of individuals in a field or social space. It creates and graduates the right to be heard, question, teaches, interrupts someone else’s speech, or pronounce your own. (84)]

The speech requires establishing, beyond its understanding, the relationship with the speaker who delivers it and the institution’s properties that authorizes it to give it.  Evaluative speeches are signs of capital and symbols of authority destined to belief and obedience.

The sign of authority is the symbolic capital, its institutional recognition that they receive from a group. The benefit of distinction is not the same for a magistrate as for a passerby. (85)

The linguistic market and the struggles for the symbolic benefits of distinction reproduce dominance in the social space. Linguistic value, in short, is an imposing symbolic power resulting from the relations of forces of the producers in the social space, both economic and authority.

In other words, the speech depends on the social position of the one who emits it and who is authorized to express the official, legitimate orthodox word of the group to which it is addressed and represented.

 

3.4. The transformation of ordinary language into technical language.

Bourdieu anticipates the double meaning, the desired ambiguity, the amphibology of the words of the common language, the work of collective construction when they transform into “technical” terms, which are proper to law and tax law.

The rhetoric of false separation implies, at the same time, the appropriation of the common language and the forced replacement of its meaning by another; this expels the common word from discourse and introduces the double game in technical discourse.

Bourdieu defines this process as “euphemisation “: the particular form produces an effect of concealment of the common language, stripping it of its original meaning. The specialists or experts acquire the monopoly of the specific language. The common word becomes vulgar, banal, trivial, and degrades if used, the discourse of the specific language, with orthodoxy and sound thinking and saying.

The interpretation principle of economic consideration and its replacement by the literal understanding of the rule, shows the tension between different kinds of language and the forces that support each of them.

The separation between ordinary language and technical language is necessary for the monopoly of the legal space to those who know and those who don’t use it in their ordinary knowledge. (86)

Legal language is a unique language concerning common language, and it allows to name different things with the same name or the same things with other expressions. The separation obeys different mental spaces from different social spaces. There are codes wise men (lawyers, economists, doctors, engineers) and laymen, both at a syntactic and lexicological level.

Tax language intensively uses particular language, but with a significant specialty, it is not only about the monopoly holders of the professional practice in the specific legal space, but also their clients with the resources of economic, social, symbolic capital, whose discourse is rather particular than ordinary – the market, the company, efficiency, tax planning, confiscation, institutional corruption, business, tax – and in competition with the Administration (the bureaucracy)

The tax language concerned says the law from the position and habitus of professionals and their clients. The production and reproduction of the legal space are oriented towards a contemporary vision of market forces, of the agents’ economic, social and symbolic capital, regardless of those who have no entry into the social field or have an alternative discourse and those who do not know.

The tax language needs the literal sense of interpretation for the universalization and generality of the discourse. That is the only way to apply creative compliance to minimize the tax: less tax, more audience.

The justification of the private symbolic capital is the minimization of the tax because it preserves the positions and interests of the power and capital of the agents on the playing field.

The Administration is the other player in the fiscal field that says the law. Its cultural capital is the first official, orthodox, legitimate word of the public institution that authorizes it to pronounce it. The Administration is a vicarious performer: either it is subordinate to the political power, or it adopts the vision of the world of individuals or both at the same time.

There is a continuous conflict between the expert and the Administration about compliance or non-compliance. To pay or not to pay. The individual has in his favor the free choice of means and opportunities to do so, whether legal or not (institutional corruption). The Administration performs a regulated activity, where any hint of discretion is predetermined.

The administrative offense leads the conflict to the judicial verdict often favorable to the more prosperous individual. The key is that he uses technical language with a higher master’s degree, in association with other experts, academics, business organizations. Exceptionally, the magistrate may be endowed with a specialized vocabulary that enables him to give reason to the Administration, but, in that case, he must prepare himself to withstand the barrage of critics interested who try to delegitimize him.

The legal production and reproduction of the tax system are to preserve the structure of the tax field and the agents who hold the domain of capital, habitus, social capital, cultural capital, and symbolic capital. That is the prevailing worldview.

 

3 .5. Agents of fiscal complexity.

V.Tanzi begins his reflection on tax complexity and attributes its exasperated development to the actors he calls “agents of tax complexity.” [87]

Specific and concrete interests’ lobbies are the invisible contributors to fiscal changes, laws, regulations, interpretation. They have access to political power, public power and achieve their objectives in a climate of secrecy and uncontrollable mystery.

The lobbies are the foremost agents of complexity. Its position is the higher qualification of the expert and client to obtain favorable fiscal targets or fight against those who harm. Their power representative is broad: be industrial, regions, other private interests, interests. His professional horizon is vast: legal reform, regulatory reform, reinterpretation of norms, campaigns against officials, politicians, or critics. (88)

The lobby is not just any professional.  Its accumulated social capital allows access to all public areas of symbolic power to obtain great benefits for their clients and legal firms, accounting, financial. The symbolic capital accumulated by the lobbies allows them unlimited and indefinite access to achieve their representation by their knowledge, recognition, and distinction.

The complex tax system feeds on the professional complication of lobbies. It is no coincidence that aggressive tax planning accompanies its campaigns on behalf of its clients; the system weakens inequity and legitimacy and feeds institutional corruption and tax evasion.

The opportunity for social adaptation of technical language and, with it, the emergence of other results, both for individuals and to the Administration, is directly related to dismantling influence-peddling organizations, halfway between expertise and institutional corruption.

The reason is not difficult to understand they turn complication into data of complexity and complexity into a threat.

 

4.Tax systems. Complex or complicated.

The tax system is a complex legal system.

Why is the legal tax system a complex system?

The number of its elements is decidedly large, widespread, and diverse in each of the individuals, positions, habits; These elements interact dynamically in a constant exchange of information; the level of interaction is high; the interactions are not linear and are asymmetric.

The tax system is part of the legal system and contains the defining criteria of the complex social system. They are summarized explicitly in the integration requirements and diversity of the elements, effectiveness of the legal norms, and legitimacy of the State’s public power actions.

The complex adaptive tax system is part of the legal system, and, at the same time, the recipients of its effects, the taxpayers. It is a contemporary example of a legal and social subsystem.

For its closure, the tax system implies a binary code that does not consist exclusively of the legal/illegal difference. The tax system works first, with the binary code compliance / non-compliance, and then coercion in case of non-compliance.

Compliance by taxpayers is quasi voluntary and depends on the logic of the government’s reciprocity, the legitimacy in their decisions, and the compliance of other taxpayers at the same time.

“The compliance of each depends on the compliance of the others”. (88)

The taxpayer’s cooperation rests on the fact that his effort will have, at some point, the logic of reciprocity, consideration in terms of public and collective goods, and decreases if he has the conviction that he will not have them.

Compliance weakens whenever there is a perception of favoritism, protection of tax evasion or evasion, and corruption. Non-compliance could be accepted as a formula of resistance to the tax by some.

What causes resistance is the ability to act. Resistance is more likely to come from those with resources than from those without”. (89)

Finally, compliance also declines if non-compliance acquires more than significant proportions, known, diffuse, in the conviction of the inequality of the distribution of the tax burden.

The tax system cannot reproduce its function when it is subject to the private dominant symbolic power. There is no rule of law fairness when the predominance over the direction of the law of other forces shields other antagonistic principles and values ​​with what it claims.

“I argue that rulers can increase compliance by demonstrating that the tax system is fair. A perception of exploitation- that is, an unfair contract- promotes non-compliance. Favoritism toward special interest groups, programs that they disapprove of declining return for their taxes, the failure of some to comply can all violate taxpayer’s norms of fairness. The consequence will be the decrease in quasi-voluntary compliance.”(90). The distinction between those who comply and those who do not comply is primary.

Those who comply seek the equitable and egalitarian performance of the tax system. The tax contract is earnest whenever it is applied. The latter makes no-compliance the source of more income and wealth without assuming the duties and responsibilities imposed by the tax system. Non-compliance is impunity.

The informal economy proposes a third hypothesis: non-compliance due to expulsion from the legal and tax system. This area is participated by people who do not fit the binary code but are on the margins of the legal system. Its operation responds to a subsystem of interactions between those who are in explicit subordination and dependency conditions.

Bourdieu’s theory chooses the subordination of the binary code of the legal system, not so much to the legal/illegal dichotomy, but rather to the contradiction between power / not being able and having / not having.

“… It is neither oriented by highly moral principles nor internally determined or controlled through criteria and programs of differentiated functional systems, but rather, is conditioned through actual ‘social exclusion’. This has grave destructive effects on the integration of society.” (91)

The force of law built on the premises of efficiency, neutrality, and anti-politics supposes adherence to the predominant power of the market. The inequality to those who are discriminate orient the transformation of democracy into technocracy. (92)

The tax system widens the gap between over-integrated and under-integrated and excluded; it favors the market dominance over interests that are not economic, social, cultural and reduces democracy to a fiction.

 

4.1. Integration and Diversity.

The interrelationships between citizens are disturbed for the collective citizen when the legal system protects those with more power of economic disposition with resources to guide their obligations or more capacity for social relations with others.

The relationships between people and the system that emerge from this shape specific modes of behavior creating the emergence of the system’s structures. Structures force people’s behaviors through feedback processes: the outputs return as inputs (inputs) institutionalized in principles or standards of action and feed non-linear transformations with significant effects.

The difference between the over-integrated and the under-integrated means that interrelation is notably higher in some than others. The capacity to behave in connections changes substantially. Access to social interactions depends on the degree of integration that each one possesses, which they are not similar among all.

“Where communities or particular groups are under-integrated, they may be unable to resist change imposed by the over-integrated with access to superior resources to command the attention of lawmakers, which might include something as simple as the right to vote or as contentious as capital to expend on lobbyings, such as multinational organizations and political interest groups, which may argue for limitations on access to employment protection, housing or asylum”. (94)

The vulnerability of the non-integrated is far from an accident because it makes the system itself and its environment more vulnerable and makes it difficult to adapt to systemic threats and risks.

The tax system demands interactions between the parties that give rise to diverse emerging structures that arise from their ability to interact according to their power to dispose of goods and services – the ability to pay-.

Quasi-spontaneous compliance rests on a low income or average wealth, work, real estate, capital, assets, subject to information and withholdings obligations, and lacking the opportunity to tax shopping, be it for intrinsic reasons. Or due to lack of financial resources to achieve it.

The elements have limited abilities to interconnect in a different way than they do and choose spontaneous fulfillment.

Quasi-spontaneous compliance might also verify in high incomes or wealth, over-integrated, which follow intrinsic motivations, renouncing the opportunity for fiscal emigration, in contradiction with their ability to pay and interaction abilities. The selection of voluntary fulfillment characterizes here elements that have diverse possibilities of relationships but choose not to do so.

Non- compliance is evident in the non-gamer’s high incomes and wealth. The assistance of a tax industry helps to their behavior self-regulation.

The non-compliance of those who can and do have the most responds to a selection of pure singular intentionality, shared in their case by others in analogous situations that minimize the uncertainty and risk that may arise. They move away from the tax system because they are not observable. If they were, there would be no uncertainty and risk.

The informal economy brings non-compliance by exclusion, which affects the most vulnerable people. Their selection is mandatory and offers no other uncertainty and risk than survival. Observation is indifferent to them.

Tax complexity is the result, on the one hand of the different assessments of the limited selective capacity of taxpayers and from the lack of information and uncertainty surrounding the absence of observers and detailed observation of their behavior.

The central paradox of the tax system is that if the compliance / non-compliance binary code is accepted, it follows that not all non-compliance – high income, wealth – is an object of observation. Therefore, it is unknown. The positions in the field of specific agents prevail over the choice of the system.

The paradox reduces the system’s complexity representing as ordinary the unlimited relationships that overflow and ignore it and increases it for the others that remain within the framework of compliance.

The provisional conclusion is that ignorance of diversity reinforces the non-linearity of the tax system. The unexpected change in the interactions between people with the tax and the environment becomes a legal breach. The emergency comes in no dramatic form, for example, fiscal revolt, but in terms of non-compliance for failure, loss of trust, legitimacy, moral value, and, in the end, of sufficient resources for the State’s fiscal interest.

The systemic fiscal perspective can be conservative or transformative.

The first establishes integration as a property of choosing the best options to satisfy their individual preferences, discarding others as cooperators of intra-systemic relationships. Ignorance predominates and the decision not to take responsibility for their actions or the circumstances of the under-integrated.

The second bases integration on cooperation, the heart of which is the integrity of the system and its operation.

“The modeling of evolutionary (or self-organizing) systems has shown that purely selfish behavior by members of a system is detrimental not only to the system but also to the particular individuals. Altruistic behavior is therefore not a” value “adopted by” nice “individuals; it is a characteristic necessary for the survival and flourishing of a system.” (95)

In both instances, there are value judgments: on the one hand, the individualistic ethics that considers the selfish benefit exclusively, denying any advantage derived from the economic, social including political belonging to the community; on the other, the ethics of cooperation, which rests on the interdependence between individuals: neither can fully exist without the recognition of the other. No one can argue that their merit is alien to the collective effort or that their capabilities are indebted to what they extract from the community. (96)

The strength of the tax system depends on gathering all those in a position to improve it because it increases effectiveness, legality, and legitimacy. The expansion of social interactions implies more dissemination of the law and resilience in the erosion of its legitimacy.

The under integrated and, to the limit, the informal economy actors are individuals whose capacities lack an equal or similar deployment to that of the overprotected and subjected by unequal opportunities and legal protection of their social rights.

The excluded are the weakest category of under-integrated. Systemic marginalization decrees the condemnation of the most vulnerable, powerless to resist the changes to which they.

Extrasystemic social existence is a penalty suffered for life, in the open, from any protection or interaction other than their own among their excluded peers.

Exclusion is a source of vulnerability and access to possibilities of social interaction in the fiscal, legal system. At the same time, it forces the sufferer to build extra-systemic interactions, often on the edge of the law, because the excluded are invisible to their eyes.

“Thus, the exclusion is a profoundly dehumanizing process. It has the effect of denying identity and thus access to those processes, which might prevent the risks inherent in human vulnerability from being realized.”(97)

The world’s misery is not just a misery of social status, salary or employment, or lack of opportunity. It is more. It is the “misery of position” (Bourdieu). It is birth as a death sentence, in which anyone’s aspirations and needs collide with all kinds of obstacles that impede their abilities, be it school, the job or housing market, and the insidious attacks of professional life. It is profound violence that twice denies any hint of equality of opportunity: first, he will never have it, and if he succeeds, he will be defeated by his lack of capital in any of its forms. (98)

The tax system is the best example of the difference in treatment between over and under-integrated. Tax inequality is growing and is linked to the inability of the tax system to tax high incomes, capital, and business profits.

Added to this is the evasion and avoidance of the local tax base towards jurisdictions with low or no taxation.

The regressivity of taxes on the richest, specific business sectors and external investors has as substitute the imposition on better-controlled taxpayers, such as workers, small and medium-sized companies, property owners.

Progressivity in reverse: more taxes on the quantity and less on the quality of taxpayers. Progressivity reduces and, at the same time, increases intentional tax avoidance (tax planning) and evasion. Every State encounter intense obstacles to prevent it, whether in the audit, verification, and investigation of offenders or in the long expansion of the tax industry (accountants, lawyers, financial services, insurers) that help them.

It would be cynical to ignore that the decline inequitable human security does not accelerate fiscal systemic risk.

First, the tax resources that affect the most vulnerable social categories are not sufficient to provide essential public goods.

Second, the systemic fiscal risk finds them defenseless, such as pandemics, climate change, erosion and profits shifting, structural corruption, organized crime, financial crises.

Third, the tax system adapts to preserving the overprotected whose capacities contribute nothing or almost to their maintenance.

Fourth, the fiscal impoverishment of the most vulnerable means that they pay a return for what they receive from public assistance or negative income.

 

4.2. Effectiveness and non-linearity.

The opposition between formalization and effectiveness is clear. The legal norm of the neoliberal universe is strictly formal and without a defined purpose. The rule is specific forever, which means unchangeable concerning the effects produced.

The Rule of Law and l’Etat de droit formalizes the government’s action as a provider of rules for an economic game in which the only players, the only real agents, must be individual so let’s say, if you like, enterprises.”(99)

The other version understands the substantive legal rule with a specific purpose and the ratio legis that justifies it. The effectiveness of the tax regulation expresses every one of the effects, not only legal, that it causes or is capable of generating. These effects are simultaneously legal, social, political, economic. Effectiveness is a cause and condition of legitimacy and both of justice.

Effectiveness (legal and non-legal effects) introduces the subjects’ diversity of compliance or non-compliance, sometimes because of the legal norm itself and others because it is part of the margin of action to act as they want of the recipients, assuming responsibility for their actions.

To the limit indicates the failure of the legal norm to its purpose because the effects it produces have nothing to do with its purpose or, worse still, it is rejected by those who are obliged. The application of the norm points to the results of the action, rather than to the fulfillment of the legal mandate; the enjoyment of its advantages, including its deviation by avoidance or evasion.

The effectiveness of the primary and secondary fiscal norm is a source of future unpredictable states. The system may represent stability for a particular time and at an established level, although its dynamics carry small changes that may cause other significant and far-reaching changes.

Systemic complexity encourages social inequality and increases it as the production and application of the law is forced to disguise, encourage or ignore it. The law adds complexity to social complexity and is self-nourishing.

The ineffectiveness of the regulatory power is a source of emergency structures and processes in the fiscal system and erodes confidence and credibility in the tax system. Financial deception postulates conflicts in compliance with the law when symptoms of privilege, preference, inequity are noticed to the detriment of equal treatment and the application of the law itself.

People come into conflict with the general objectives of the tax regulation, either because they have no interest in respecting a text that others do not respect or, on the contrary, because they define it result in the breach of regulation on the condition that others appreciate it. The interaction between people helps to determine the degree of effectiveness of the right and its evaluation.

The questioned effectiveness feeds a breach of the law when citizens do not believe in the government and, therefore, are reticent in their social willingness to cooperate.

The fiscal privilege now means that not all citizens attend public spending because of their ability to pay, nor do they take advantage of the collective public goods that give content to their dignity as a person. The individualistic ethic prevails, weakening social cooperation and the tax system.

Financial deception is arbitrary in the head of the mass taxpayer, identified in the quasi-spontaneous compliance with the laws and, above all, when he realizes that the non-compliance generates more significant advantages in others than the fulfillment itself.

The tax includes this conflict both in its institution by law and in its application. Thus, the tax impulse can not prevent failure without palliatives not getting the very rich are taxed by the principle of equality and multinationals businesses or not carry their benefits far from where they get it. (100)

The rupture of quasi-spontaneous compliance illustrates the systemic hazard because it breaks the voluntary interaction of citizens in that situation – it expels them from their social morality – and coercion.

“The taxpayers’ willingness to pay taxes is based on the authorities’ respectful treatment with them. On the contrary, when the authority considers them as” subjects “who are obliged to pay, taxpayers tend to respond actively avoiding taxes.” (101)

Coercion becomes another form of arbitrariness because it is not applied with criteria and values ​​of equality, but with partiality, in favor of particular interests. (102)

Fiscal democracy is no longer critical because the vote on the tax, its spontaneous fulfillment, loses justification.

The non-linearity of the taxpayers’ interactions who adopt the code of non-compliance occurs when they don’t expect a response or stimulus to the basic logic of reciprocity. Consequently, they anticipate decisions that lead to changes, which may be necessary, in the functioning of the fiscal system, up to systemic risks that threaten its resilience.

Non-linearity is the consequence of small, microscopic changes that may go unnoticed, but that heralds a shock in the foundations of the system. Financial deception can come from the dominated as well as from the blindness of the dominant.

The illusio expresses interest in the game and commitment to the specific rules of the field in question.

Bourdieu calls illusio the demoralization of the ruling classes, and that explains their decline. Financial deception comes from a loss of interest in the game. Everything that had to be won has been achieved. There is a loss of care to continuing it, or their efforts are disproportionate to the results.

“Very often the dominant can contribute to shaking the foundations of their domination Because and driven by the logic of the game, by the logic of the struggle in a field can forget that go a little too far.” (103)

 

4.3. Legitimacy and self-organization.

In a first approximation, legitimacy explains the will of citizens of obedience to government authority because it is appropriate. Levi says that legitimacy denotes the widespread acceptance of the right of the government to govern. When this happens, the Administration does what it should do, and the citizen recognizes that he is obliged to do what he is asked to do. (104)

Legitimacy is the name of the spontaneous self-organization of the system. It describes the interrelationships forged between people grouped for various reasons, unified based on their response to the legitimacy of compliance / non-compliance with the tax.

The main form of legitimacy promotes quasi-voluntary compliance with the rules with a government, in a broad sense, relatively effective in serving its citizens. Legitimacy makes spontaneous adherence of citizens to the legal system regular. In this sense, it is a necessary condition of justice.

Legitimacy derives from the fact that decisions are considered good, e.g., providing public goods, collective for minimum quality and good life.

Legitimacy, then, nourishes the logic of reciprocity in compliance with tax duties directly related to the goods and services received.

The factors of weakening and bankruptcy of legitimacy are:

-When the authority shows signs of arbitrariness, favoring private interests, or is institutionally corrupt. Financial illusions and the corruption of companies facilitate by the tax industry express the deviation of public purposes due to partial and biased preferences. (105)

-When the production and application of the law are unjust or inequitable and cause disobedience. (106)

-When there is widespread avoidance and tax evasion. Spontaneous compliance suffers if there is a high degree of evasion. It forces more those who comply, and the coercion that ensures the duty of all in general compliance with the law is not applied.

Partial performance of fiscal State for its preservation and advantage of particular social sectors suggests the message of selfish claim, not associated, the citizens.

Legitimacy suffers from the divorce between the collective citizen and the public sector, the increase in conflicts and tensions between various social sectors, and, finally, the cultural predominance of skepticism and reluctance towards the fiscal State.

The lack of legitimacy leads to mistrust. It is the belief that the government does not act in defense of the general interests of the taxpayer that it complies with, as if it were his.

The tax system develops complex structures with a de-structured beginning that substitutes the more or less homogeneous response of quasi-spontaneous compliance with another heterogeneous and contradictory.

There are two determining elements of the fate of the complex system: the environment and the history of the system itself. Unpredictable changes in the environment prevent the response rigidity of the system. P Cilliers says: the system must be “plastic”, which warns of new structures, processes, and emergencies. (107)

Citizens do not have a common and shared behavior towards the State. Instead, they depart from conventional social morality and their intrinsic motivations, adopt conflicting goals with others under different expectations regarding the tax.

The interaction between the tax system and the social and public environment produces a non-linear structure and disintegration, uprooting, resignation, and emigration that lead, through civic behavior, from microscopic changes to new macroscopic tendencies of adaptation to the distinct circumstances.

The breakdown of the symmetry in the homogeneity of the ordinary citizen produces the extended social repercussion of spontaneous non-compliance. There are incorrect social interrelations, the non-linearity of the system, and the emergence of small fluctuations potentially directed to cause broader and more decisive effects.

Heterogeneity is under the dominium by the (bad) example of some citizens’ limited behaviors and the situation they create when others who previously did not participate join. The anticipated devaluation of the tax is the origin of structures inclined to unforeseen alterations until then of the system as a whole.

The implicit message is resounding: the tax is bad in itself, and its only justification is to avoid it. Failure to comply seeks to eliminate the tax as a cost and its conversion into a source of income, which derives from exploitation through appropriate reduction techniques, minimization, or deferral.

Impunity of the tax system against failure breaks the symmetry(homogeneity). It allows entrainment of those who ordinarily are non-gamers on others involved in compliance but victims of financial deception. It is what P. Cillers defines as the formation of associations through resonance. (108)

Heterogeneity leaves bare a paradox of the tax system: the non-payment self – organization of the structure emerging appears headed by those with privileges to attract taxpayers ordinary, living different circumstances.

The burden of public resources fell on the social sectors with the least ability to pay – workers, small businesses, real estate owners. The most advantaged social sectors have more power to dispose of goods and services – large agricultural owners, large companies, industrial and services, financial and adjacent sectors, large food wholesalers, digital platforms, significant health care, and education organizations.

The State loses legitimacy and confidence because there is no correspondence between the taxation and the provision of public goods. Its failure threatens the resilience of the tax system and increases the vulnerability of the disadvantaged.

The sociology of ignorance works in the typology of corrupting communication, consisting of falsifying arguments, facts, symbols, language, with the explicit aim of exploiting social ignorance. (109)

 

4 .4. Complexity and complication.

Complexity, following P. Cillers, presupposes a non-linear, self-organizing system of emergent structures and processes, which cannot be fully understood. A system can be described as complicated if it brings together a multitude of its elements, but its complete understanding can be described in its entirety and forever. Ironically, he says, a jumbo plane is complicated; a mayonnaise is complex. (110)

Complexity theory is insufficient to account for complete complexity.it ignores the relationships between individuals and their origin in the fiscal field. There are differences in power and capital positions and the hierarchy of symbolic power as the cause of the orientation of the legal and fiscal system.

The legal and fiscal system is complex because it refuses the entire one-time understanding of its existence and operation. It is a mistake that it is from its inherence, malfunction, and the detriment of the agents and the State that serve as the foundation.

The complexity model is incomplete and uncertain. It cannot raise inequality in the social system to a condition of existence.

The imbalance in the fiscal field between the agents and the omnipotent exercise of the symbolic power question the self – organization of the system, of which comply, those excluded, Administration, other judiciary power and politicians. A complex system thus inclined inspires unexpected and unforeseen social changes or prevents the mechanisms from working.

The difference between complexity and complication is that the dynamics of a complicated system, given a level of resources and information, can be fully understood. However, the complex system has non – linearity, self – organization, and feedback, which prevents their full knowledge. (111)

The description from the pure theory of complexity is not persuasive for social systems.

A complex tax system is not the opposite of a complicated tax system.

The complication of the system derives exclusively from technical language and, of course, serves to feed the complexity of the power and capital of the fiscal field for the benefit of its main actors. The repetition is obvious: the complex fiscal field becomes even more complicated when the defenders of a specific world vision can understand its results alone.

The tax complication has nothing to do with similar concepts of the complexity theory. The justification of the complication does not make it understandable and predictable, not subject to unforeseen events. It is a form of the complexity of the tax’s agents that is understandable and predictable for those who impose it on the system.

If the consequences are analyzed, it turns out that the complex complication always creates favorable situations for the holders of symbolic power: institutional corruption, tax evasion, tax avoidance. (112)

Technical language is an instrument of the symbolic power of individuals who act in the fiscal field. An attribute ofa privilege of capital and recognition, above or together with the Administration, the judiciary, and the political power. The complication serves to add complexity…” they are entitled to their incomes and privileges, including that of being able to influence public policy with their money. In democratic countries individuals can promote their rights with both their political votes and with their financial power. As Gaetano Mosca, the 19 th Century Italian sociologist, stated, “Political power produces wealth and wealth produces political power”. (113)

The complicated complexity reaches its maximum radicality in globalization. The exercise of the symbolic power of multinational companies facilitates the creation of tax value without economic activity and the profits shifting to third countries. This is mainly in connection with the complexity and design of aggressive tax planning opportunities. Complexity is an additional reason for minimizing the tax. (114)

 

4 .5. The source of tax complexity.

What is the source of the complexity of the tax law?

“Substantive tax rules with complex interrelationships characterized by complex variations in the treatment of transactions often similar in substance or form all of which are expressed in complex terminology and legal arrangements”. (115)

It could be said differently, but not better. In the complexity that is inferred from the SSSurrey quote, the sarcasm is easily perceptible. It is a design of arbitrary complications on identical subjects with obscure and unintelligible language, only understandable to experts.

The mistaken confusion between complexity and (complex) complication leads to wrong conclusions.

D.Bradford describes what he defines as complexity in three elements:

-Complexity of the rule of law (interpretation)

-Complexity of compliance (document preservation and accounting, tax calculation.)

– Transactional complexity (aggressive tax planning). (116)

The interpretation, the quantification of the base, the documentation, the accounting information, the aggressive tax planning is all, as a whole, the complex complication of the tax system. It is the actors’ work that imposes their results that coincide with their vision of the world. It is about achieving the monopoly of technical language and its arbitrary placement as a universal, impartial, neutral truth of the issues it faces, with total disregard of principles and values ​​that may contradict it.

The complication of the law does not mean clear, brief, concise rules or finding adds certainty detail.

D.Jarach says that the interpretation is never that of the letter of the law: the law has no interpretation. Interpretation is about reality; the facts are within the scope of the law. The letter of the law can be evident in itself, but what is not clear are the facts. The facts are one of the ways of describing reality according to the will of the interpreter and his ability to make it imperative. (117)

The semantic and meaning approximation, the cult of the text and the word, culminates in more significant tax avoidance and creative compliance. Formalization conceals a reality that is less and less definable, less limitable, less limited. The behaviors and events that cause the most damage to the principles of equality and justice remain outside the norm.

“The closely semantic approach inevitably leads to tax avoidance”. (118)

The complication is not quantitative but qualitative. The tendency to assess its greater or lesser scope is absurd by estimating the number of pages, text, articles, resolutions, as if it were a literary defect, of terrible writers (who also).

For example, it seems ridiculous to measure complexity by counting the number of lines on the income tax return and the number of pages in the instruction manuals. This approach helps divert attention from the real problem, turning it into a mere anecdote, on the other hand, unsolvable. If that is a fiscal simplification, it will never be achieved. (119)

It is not a philosophical problem: the tax code and legislation, the formal duties, are confusing, secret, incomprehensible, poorly written, whatever is necessary to hide the purpose that the authors pursue. (120)

The same argument is used to analyze the procedural justice of compliance, formal duties, and information.

Osofsky defines the concept of strategic uncertainty as to the absence of administrative, fiscal guidance regarding the responsibility of taxpayers.

1.Through the ambiguity of the text.

2.The passive application of sanctions in the face of uncertain texts.

3.The increase in non-compliance concerning doubt”. (121)

The problem does not concern the simple taxpayer whose only income is a salary, interest, or rent, ordinarily subjected to indirect tax pressure, but rather those who dedicate their best efforts to extract particular results from substantially vague texts.

The perverse effects referred to by Osofsky are none other than the mechanisms of reduction, deferral, non-payment, of legal duties of uncertain meaning. We are at the heart of technical language. In short, the Administration’s strategic doubt is an additional element to favor compliance manipulation. When the Administration does not say or say wrong, that is how it should be. The speech is not the result of incompetence but subjectivity. Complexity (complication) indicates an administrative will to combine messages that are not visible, except for experts, nor independent of their technical contours.

The complication and not simplification are essential for tax law. Non-compliance will be less evident the more complicated it is to identify, to the point that, in the end, they will not be able to differentiate one from the other. The private protagonists of tax non-compliance do not suffer from the lack of resources to induce solutions to orient themselves in the administrative decision.

The fiscal field is legally weak and complicated because the compliance of those who do not want to do so is avoided or diluted.

Buell says that there are fields, such as the legal tax, where regulatory clarity is low and complications higher, but based on elusive foundations, which favor evasion.  (122)

Indeed, the central problem of complication as complexity lies in aggressive tax planning.

 

4 .6. The rhetoric of simplification. 

The simplification of tax or the system is an architecture of opinion committed to efficiency, neutrality, and technocracy (agents of complexity). It is the anti-will of those who define the tax or the system for its better use. We must eliminate all the propaganda from their discourse, and only some expressions accompanying the benefit sought must remain.

The core is the permanent defense of low taxes and low tax rates; discrimination in favor of specific activities: banking, financial, insurance, digital; of the increase in tax benefits – exemptions, bonuses, reductions – in the taxable base of direct and indirect taxes.

The complexity is indisputable and insoluble in the tax options, its essential elements, its administrative action. The fiscal field is a mirror of the social mirror.

The simplification of the legal norms that discipline cases of tax avoidance and evasion or aggressive tax planning strategies are about preventing the loss of tax savings built from loopholes, inaccuracies, or indeterminacies of the law or through the appearance of new figures of strictly fiscal motivation: financial hybrids, synthetic hybrids, partnerships, companies of investment at zero rate. The fiscal value of the unpaid tax from the very letter of the law is a new source of income. Creative compliance gives its best results in the complication, not simplification.

The simplification of the system does not serve as a deterrent to tax evasion. On the contrary, the few investigations carried point out the opposite. It does not seem that simplifying is in the best interest of the main evasion agents because “taxpayers do not necessarily consider a complex tax system as unfair.”(123)

The simplification is a phrase that, once exposed, lacks content: simplifying the law, simplify communications, simplify Administration is wishful thinking. [124)

In the end, Donaldson is right when he argues, that simplicity is not necessarily good, and tax complexity is not necessarily bad. The complexity perspective is better than we think. And it is correct in the sense that it is. The law is predictable for someone who understands the issues and political pressures that forge exceptions. Indeed, complexity is what is sought and, ordinarily, is achieved. [125)

Simplification’s sole purpose is the unity of the message tending to transmit the disposition in favor of less State, less tax, and, where appropriate, of a neutrally combative Administration. It is an additional manifestation of the ideology of the State’s dwarfing.

“The promulgation of a small state ideology has the effect on actors (in many fields) of simply accepting such a principle to be relevant and ‘better’ than any alternative”. (126)

 

5.Meta-capital of the State.

The State builds the structure of the social order and constitutes the social world. The recognition of the legitimacy of the State is an act of collective belief. 132

The State is a doxic experience in the social world, which is not even perceived as belief.

“Doxic adherence is the most absolute adherence that a social order can obtain since it is situated beyond even the possibility of acting otherwise: it is what separates doxa from orthodoxy”. (127)

The doxa is not immutable or perpetual, nor is it taken for granted once and for all. The conflict, the heresy caused by the rupture or fracture of the heterodox forces it to be made explicit and then becomes orthodoxy. The doxa is orthodoxy when it forces the dominant response of the field of play of the public power.

Why is the tax a burden on the poor?

Orthodoxy in the direction of the State is the effect of a struggle between opposites to appropriate the capital that gives power over all other fields. Meta-capital is capital with the particular property of exercising overall power capital, a power above the powers.

The State is the center where the monopoly of the force of law converges [128).

The playing field of public power is a place of struggle between the agents who possess a capital that has power over other areas, the conservation and reproduction of the different species of capital. Meta-capital exercises authority over the remaining forms of capital and the relations of powers between their holders.

The modern State is a two-sided reality. The essential is the universalization of discourse and, at the same time, its unification and centralization. The State accumulates and dispossesses. The concentration of symbolic power punishes excluding those who threaten it: more integration, more significant exclusion, and dispossession.

The particular visions of the political and economic forces that achieve dominion over the State, also conquer the universality of what they say. Bourdieu specifies that the truth of the State is consensual and functions with the force since it is declared.

The State is a means of coercion and achieves the obedience of the dominated through consensus, which it shares with those who are subject to it. (129)

The monopoly of the universal is based on the power to give identity to things that become the unique and universal name.

The construction of the State as a meta-field extends into the building of all fields. It is a platform for the constitution of all other areas.

In the economic field, the tax system relates to the construction of a major financial capital, of the main Treasury that gives power to the possessor:

-The right issuance of currency.

-The right to fix resources and.

-The right to make economic decisions.

The constitution of this central economic power gives the State the ability to contribute to the construction of autonomous economic space and the Nation’s construction as a unified economic space. (130)

Fiscal power accompanies the unification of the economic space and creating the market, “an artifact built by the State”.

The legitimate vision of the social world would be insufficient if not accompanied, as happens, with the apparent inclination of public resources in favor of those who precisely promote their legitimate vision of the social world from the control of the State’s symbolic power. (131)

The State is the place where the forms of capital fight for the unification of their interests and the homogenization of their power. This public, shared instance is not automatically an apparatus favoring some forms of capital rather than others, nor is it a neutral site for conflict resolution. Bourdieu qualifies the State as a form of collective belief that structures the whole of social life. (133)

The form of the State as a place of conflict does not imply that it is an inert or empty instrument at the exclusive service of some forms of capital and forever. The meta-field is constantly under dispute between opposites. In particular, what represents private and public interest. (134)

The disinterest of public action is essential in Bourdieu to describe the opposite of economic and selfish interest. He attributes it to the conservation and increase of symbolic capital. Public service is a disinterested activity oriented towards universal ends. The disinterest of public action is a distance from the economic interest or, more broadly, any selfish interest, material or symbolic, of the market. There is no relationship between disinterest and profit.

 

5.1. Neoliberalism. 

The neoliberalism – especially German ordoliberalism – consists in the disarmament of the public and general State, under the principles of the market economy and the dismantling of the collective.

Market fundamentalism occupies State and vacates all the power of the community.  It elevates the privilege of the individual´s sovereignty, of the business, in the face of the autonomous State.

Neoliberalism, explains M. Foucault, transforms the classical perspective of the relationship between the State and the market. Classical liberalism asks from the State that freedom remains in the hands of the economy. At the same time, neoliberalism proposes that free market can have the function and role of creating the State, making possible the foundation of its legitimacy. (135)

The effects of the market, not the State, are sovereign and can only formulate their legitimate intervention to guarantee competitive mechanisms with discipline: a general regulation through the market.

The formal law should not penetrate fields that do not correspond to it, such as, for example, the income gap or social wealth or inequality. “Inequality is equal for all” (W.Ropke”). The market gives everyone what they deserve, and we must all accept the implicit model of society. The State is the first subject to control, survey and judge the market. (136)

The neoliberal utopia causes a commotion in the State’s known and recognized structure and differentiated societies. It is another project whose vocation is renouncing the public and the social in the fields of power they hold and the doxa of disinterest inclined towards the collective. The resignation also sacrifices the meta-capital, the idea of ​​an autonomous power above the powers is subordinated to the subsidiary action, complementary to new interests of economic, political, social, cultural power that occupy the “State of the right hand”.

Bourdieu understands immediately that private logic has captured the public interest. The State is forced to withdraw from its convictions.

The State loses the monopoly of what is universally and universally applicable on its territory. Coercive norms cease to respond to the social group inspired by other external legislators and jurists that oblige it, particularly international organizations such as the IMF or the OECD and the lex mercatoria imposed by the global economy.

The starting point for the new reflections is La Misère du monde. (137)

The position of misery individualizes a category of people who will not be able to escape during their lifetime the restrictions that impede the development of their abilities- ie family, school, work or professional aggressions. It is worse than the misery of the social condition because the person who suffers it will achieve, except for changes, neither happiness nor personal fulfillment. Equal opportunities are unattainable.

The State does not appear as a solution, opting for resignation or reducing solidarity to charity, imposed by an imaginary pseudo rationalization of the reality of the market.

The market produces poverty, the law creates crime, the school increases exclusion and makes it increasingly difficult for the person to no longer enter the game of acquiring capital, but in the game itself. (138).

Since the 1980s, neoliberalism is a global political project, now increased by digitization.

The financial system pioneered instant transmission, interconnection, and speed of transactions here and anywhere, coupled with the digitization of sophisticated financial products, financial derivatives, which did not require the investor to understand financial mathematics or algorithms.

The success of the financial adventure won’t be probably without aggressive tax planning to minimize the tax, the elimination of the tax as a cost, and its conversion into a source of income. The systematic practices of global banking originated fiscal value without underlying economic activity until the systemic financial explosion of 2008. (139)

The environment was subject to commodification through the privatization of natural resources and ecosystems. Sustainability resides in protecting proprietary and contractual rights, omitting public and collective sensitivity. towards climate changes risks, structural inequalities, and vulnerabilities. The State is irrelevant because it disturbs the efficient operation of the market economy. The idea of ​​climate justice comes after market mechanisms, property rights, and the free entrepreneurial initiative. (140).

A neoliberal new order imposes on each State, without exception, limitations, and restrictions that are not its own, of its social order. The State loses its autonomy in primary sectors – tax and financial, environmental – favor transnational economic forces and domestic subordinates. There are external limitations that obey the dominant principle of the intangibility of the global market and the strict economic interests of the capital that dominates it. (141).

The exclusive power of the State to name, to give existence to social recognition supports the direct and immediate interference of global value chains, the lex mercatoria, large law firms, and legal, fiscal, and financial consultants (the tax industry)

Arbitrary acts are defined from less exclusive spheres than those of the Westphalian State and run with full intensity its hitherto undisputed imposition capacity to legitimize a sense and representation of the world.

Multinational and digital platforms, the legal, financial, fiscal services industry, international organizations such as the IMF and the OECD possess, within each State, the concentration of the power to turn into truth their opinions on the politics, the market, environmental and social rights and, obviously, tax law. In short, they use each State to impose its legitimate vision of the social world.

The fields as a whole are contaminated by the ” logique du marché pur.” (P. Bourdieu). (142).

Global neoliberalism condemns the person to an oppressive construction and uneven pending the divestment of the State, based on the arbitrary allocation of capital between those who hold profits and income of its appropriation, only supported as a result of symbolic violence that persuades him. This only alternative is to become aware of arbitrariness and deconstruct the belief that serves as its foundation.

As the undisputed holder of the last word, the logic of the State appears threatened with replacement due to globalization. The discourse comes from other agents, other social spaces, other fields. (143)

The neoliberal project, in Bourdieu, is based on the pursuit of selfish interests and individual passion for profit (greed), for which it must first and necessarily destroy the public interest, collective goals, and any hint of selfless interest.

The neoliberal political project underway implies a program of the systematic and methodical destruction of the public interest, the general interest, the collective interest, the social interest, the demolition of the idea of ​​public service, and the State’s resignation from its social bond. “It is so strong and difficult to fight just because it has at its side all the forces of power relations, a world that contributes to being what it is.” (Bourdieu). A way of symbolically qualifying these relations as dominant forces in economic relations. (144)

In light of the circumstances, the historical conception of the modern State collapses.

-The social, economic, and commercial order is different and is imposed from outside, from opaque or secret organizations, which avoid the inclusion of everyone in their decisions.

-The public word is replaced by the implacable force of the market dominated by the significant global and local economic forces.

-Coercion prevails over consensus, because the destruction of the collective inspires the breakdown of the doxa, belief in the common interests protected by the public interest, the interest disinterested.

-The dominant social morality is that of self-care [145).

-Democracy is stripped of active participation in government, and the political culture is directed towards the political and patrimonial freedom of those who already own, dispose of or hire.

– The field of power appears to be occupied by a functional bureaucracy whose horizon is not the State’s reason, but its selfish reason, of service to the power of economic capital, among other reasons, because it ensures its professional future (revolving doors).

– Public meta-capital appears diminished compared to the global meta-capital of value chains and digitized platforms.

Finally, the full complexity of the Nation disappears, the unification of the joint space and institutions, and the prevalence of the rule on other forms of universal capital. The universal national word becomes a local particularism of relative importance.

The market is no longer an artifact built by the State. On the contrary, the State is an artifact made by the market. The claim is to imbue the entire social order with a market logic: people, families, schools, institutional apparatus, and public policies.

The beginning of the State’s right to tax protection is born when it loses meta-capital and its overall power capital.

 

5 .2. The new paradigm of the G20. Global public domain. 

The market aggression against the State, in total harmony with Hayek’s thinking, brings two destructive effects: the dismantling of the social order and the loss of an egalitarian and democratic collective sense. It is part of the resistance that the States seek, for simple reasons of survival, sovereign equality in a revised conception of sovereignty and human rights. (146)

The result is the gradual constitution of a new global public domain that seeks a point of compromise between States, international organizations, and non-governmental organizations. The objective is the production of global public goods and aspires to guide the disorderly movement of transnational companies, wealthy taxpayers, organized crime, corruption, tax evasion, and avoidance, in short, the global illicit financial flow. (147)

The G-20 is the primary protagonist of the global public domain and enunciates in Pittsburgh and Los Cabos the right of each country to fully execute its tax laws to protect its tax bases. Its development and final adoption were at the G 20 in Saint Petersburg.

The safeguarding of the tax base itself elevates to a common principle the right of every State to defend its source of income or wealth, to protect the economic capacity that originates from its territory.

The preservation of the tax system is an essential attribute of social identity. Bourdieu points out that the experience of belonging to a defined territorial unit is strongly linked to the tax experience. We discover ourselves as subjects by identifying ourselves as taxpayers. (148)

The protection of the tax system means protecting the State to channel the word of social order that corresponds to it and the State needs to have the weapons to establish and collect taxes under the principles of justice and equity.

The tax system is a privileged channel for identifying and individualizing the people necessary for its application and execution.

The erosion of its tax base produces the blindness of the State because it prevents it from visualizing the income or wealth of taxpayers and their contribution duties, which affects both residents and non-residents.  The anti-erosion principle entails the existence of de facto circumstances produced by specific economic, local, and international agents, or organized crime groups whose space is extraterritorial, transnational, against which the reaction is necessarily public and global.

The effects of erosion are significant because they alter the forecasts for financing the necessary public spending in each country; they modify the distributional aspects of taxes and their democratic content and worsen inequality between developed and developing countries.

The Preamble to the G20 declaration held in Saint Petersburg, Russia, on September 5-6, 2013, points out that cross-border tax evasion and avoidance undermine public finance and people’s trust in tax justice. “We are committed to changing our rules to combat tax avoidance, harmful practices, and aggressive tax planning”.

The G20 Plan for Erosion of Bases and Displacement of Profits (2015) transforms the paradigm of international taxation, emphasizing the right to protection of each State to its tax base. That claims for reforming its policies regarding transnational companies in tax arbitrage, aggressive tax planning, transfer pricing.

The fundamentals that support is in the following terms:

First, ensure that all taxpayers pay their fair share of taxes. The application of the principle of equality.

Second, profits must be taxed where the economic activities occur and where the value is created, condemning the creation of tax value without underlying economic activity.

Third, encourage countries to change their rules that stimulate the erosion of the tax base and profits shifting. (149)

Fourth, recognize that effective taxation of movable capital income is one of the critical challenges.

Fifth, commit to developing the OECD Action Plan and “adopt individual and collective action taking into consideration the sovereignty paradigm.” (Par.50).

The content of this paragraph is highly demanding.

On the one hand, it prioritizes equitable contribution to public spending, ensuring that everyone pays their fair share of tribute. On the other hand, the obligation to confront tax avoidance, harmful practices, and aggressive tax planning.

Sovereignty is the paradigm that the State’s fiscal interest must rebuild and implies that protection supposes defense of the threats and harms external and internal.

The global public domain recognizes the right to fiscal protection of the State. The safety of the autonomous power of the State before the agents of the global economy, to consent to the fight against transnational and wealthiest taxpayers tax avoidance and evasion.

The right to fiscal protection also implies the human security principle. On the one hand, the lack of tax resources reduces the satisfaction of irreplaceable social needs to satisfy people’s capacities. On the other, it reduces the resilience of the public, social and individual system.

The weakened public resilience cannot fight against multinational companies, digital platforms, organized crime, or structural corruption.

 

5 .3. The right to the protection of the Fiscal State. 

The right to the protection of the fiscal State is a common transnational principle of good governance from the G20. Profits must be taxed where the economic activities take place and where the value is created. All taxpayers must pay their fair share of taxes and avoid misuse or opacity of legal persons and other entities or contracts.

The right to the fiscal State’s protection defines each country’s right to protect its tax base, the safeguard from the erosion of the base and profits shifting, and the guarantee of collecting the tax wherever it generates profit and value.

Taxpayers who enjoy advantages in a market and originate their profits must pay taxes to carry out their activity. Protection also means that the local State can discipline other tax revenue that escapes tax, the tax value created without underlying economic activity, and whose source is tax planning (e.g., derived from intentional tax avoidance or evasion). (150)

The self-protection of the fiscal interest of the State has two components.

In the first place, the institution and procedures aim to prevent intentional tax avoidance and tax evasion of tax credits already created by residents and non-residents.

Secondly, the safeguarding of the tax base of the State to prevent the profits shifting of fiscal income, before the imposition of the tax involving configurations in the composition of the tax base built for the avoidance or evasion of the assessment, allocation, or qualification of income or benefit.

The protection of the fiscal interest of each State enables the entire exercise of its tax power over the ability to pay that manifests itself in its territory, under the law and the principle of equality, whatever its source and subjects, residents, or non-residents. (151)

This is not new because it is already mentioned in footnote 6 of article XIV d) of the General Agreement on Trade in Services (GATS) of the World Trade Organization. (152)

The innovation is the connection between the right to tax protection and the principle of human security.

The fiscal protection of the State aspires to recover the double aggression: the resources of the public tax authority and the aspirations of the people against fear and the essential needs of the future.

The protection provided is legitimate when it protects human security in its various expressions: economic, political, health, environmental, food, and community security. The tax changes undesirable behaviors and meets human security essential needs.

The protective State is the vicar of human security focused on its people who live together within its institutional and legal environment.

The protective State strengthens its capacity to preserve the structure of the system and reinforces the defense of the vulnerability of individuals, thus helping their resilience to respond to unforeseen and systemic changes.

“In cases where Government institutions are weak or under threat, the human security concept advocates addressing the root causes of these weaknesses and helps develop timely, targeted, and effective responses that improve the resilience of Governments and people alike. Such an approach helps reduce human insecurities and ultimately strengthens Government and local capacities and contributes to greater national security”. (153)

 

5.3.1. The creation of tax value without economic activity. 

Each country has the right to protect its tax base and guarantee the tax collection wherever the generation of profits and value takes place. Firms that enjoy advantages in a market and originate their profits must pay taxes where they do business.

There is the creation and capture of value by economic activity, and there is the creation and capture of value without economic activity. The latter source is aggressive tax planning.

Tax value creation and value capture occur through and within the framework of tax minimizing schemes aimed at their elimination, deferral, or annulment to obtain undue advantages. The tax source of value creation becomes crucial in generating economic rent. (154)

The minimum global tax projected on corporate profits coincides with other systemic taxes arising from systemic risk. (Climate change, financial system, digitalization, excess benefits of pandemics).

 

5.4. The rules of the game in the international tax field.

The State is the leading actor in the international tax field. Its symbolic power is weak in competition with other more powerful States and jurisdictions with low or no taxation, transnational companies, large legal services firms, financial accountants, and wealthy taxpayers.  Moreover, the State’s playing field is reduced by competitors’ work with a better position and capital in the power relations. The State continues as the last border of jurisdiction, territory, social protection, language, and coercive vis but, it is not the main form of symbolic, economic, or political capital.

External agents and experts coincide in the disputes with the privileged part of the community (entrainment), adhering to their particular interests and objectives and deteriorating public monopoly of symbolic power.

The force of law appears questioned by other forms of sovereignty in private hands. (155).

The State loses the privilege to say the law in private, contractual, intellectual property, binding arbitration in foreign direct investment and public, fiscal, labor, and environmental law.

The weakened right to tax protection appears as a necessary consequence of the disarmament of the State’s symbolic power. Sovereign private powers surpass the public empire, be they conventional or digital global value chains.

The weakness of the State comes from the participation in the game of other State actors who take advantage of the rules of the game to violate them and take advantage of fiscal erosion. This happens with non-cooperative jurisdictions with low or no taxation, tax havens, and ordinary jurisdictions like Holland, Luxembourg, Austria, and Singapore. (156).

The local and international tax legal field is inseparable from the monopoly of certain professionals on the production and commercialization of legal, accounting, financial, economic services endowed with particular knowledge and the ability for tax planning.

The Tax Advisor is the critical subject of tax planning. The person or entity provides the taxpayer with the help to set up tax avoidance schemes. In the ordinary course of its activity, it offers material assistance:

-Delivery of companies, trusts, foundations, the opening of bank accounts.

-Services of trustee.

-Powers of attorneys

-Maintenance of infrastructure, and, obviously, concealment of information

The Tax Advisor has a causal connection with tax planning and tax planning is the realization of creative tax compliance. The letter of the law is the dogma to conspire against its purpose or reason for being and achieve an advantage through artificial or non-genuine constructions that would not be obtained if it did not exist: misuse, the abuse of the text of the law.

The core of the production of minimization schemes is the tax industry, the set of entities and individuals dedicated to the lucrative commercialization of mass products, whether offshore or onshore. The offer is overwhelming, as are the benefits derived from the exploitation and overexploitation of world income associated with the taxpayers. It is the contributing activity of the Big Four (Price-Waterhouse, Ernest & Young, Deloitte, KPMG), of law firms, economists, accountants, and financial consultants. The equation is straightforward: the lower the tax, the higher the fees or profits. The unpaid tax becomes a source of income in itself for those who get it, be it the taxpayer and those who design, organize or manage avoidance schemes through their intermediary services.

The extensive and global use of tax planning causes a double negative impact: damage to the collection of taxes otherwise owed and damage to other taxpayers overburdened with taxation due to the absence of additional due and unpaid tax revenues. The public interest and the collective interest are injured at the same time.

The products of intentional avoidance are only available to those who have the resources to afford them.

The tax planning scheme is based on acts predetermined with the exclusive or prevailing purpose of obtaining tax advantages due to the formulated transactions. They are artificial and not genuine constructions without economic substance or commercial validity. (157)

The 2021 UN FACTI Report points out the relevance of disciplining the global illicit financial flow facilitators. It refers to legal professionals, accountants, and representatives of financial institutions. In their opinion, they are essential players in international business agreements. (158)

Finally, another important player on the playing field is the OECD. Its interference is decisive on the fiscal policy of the States, although it lacks legitimacy. The symbolic capital of the OECD is next to the developed countries that founded it, the large companies, and the significant tax industry that accompanies them. Its historical decisions do not admit any doubt of its position: it has indeed managed to whitewash its reputation through the support of the G20 in the structure and purposes of the Plan of Action on Erosion of Bases and Profits Shifting.

However, the symbolic power of the OECD is under discussion because its partiality in favor of large states and business and professional organizations casts shadows on its hidden arbitrariness. After all, it lacks inclusive legitimacy, democratic participation, and its political deficit is dominant.

Under the full auspices of the United Nations, the International Tax Organization should be the alternative to prosecute harmful tax competition, the unfair exploitation of the global tax base, and help reduce tax avoidance and evasion connected with international activities. (159)

The FACTI Report postulates the creation of an inclusive intergovernmental body in fiscal matters under the auspices of the UN (Recommendation 14B). Likewise, mechanisms that extract from private interests resolve conflicts and disputes in issues of illicit financial flow (Recommendation 4.5).

The designated agents progressively build what we call neoliberalism: it is a political, economic, legal order that allows its followers to say the global word of right or wrong, of good and evil that contains a quasi-mandatory command of obedience for the States. Thus, finally, the State is dispossessed of its official discourse.

The universalization of the market that results glorifies the goods of individuals on a global scale. It provides their free activity, in the face of any public power, in the logic of capital and world trade. The universalization process imposes the dispossession of each State. The natural and effective depositary of the monopoly of legitimate symbolic violence in the economic and financial field.

The global universe of capital is inseparable from the agents that drive it. The claim is to simulate an autonomy that they lack as an autonomous space concerning the social forces within each State and the State itself as if they were third parties or arbitrators above the parties. Their staunch defense of mediation and arbitration mechanisms as substitutes for local justice is no accident.

The disempowerment of the taxing power, of the ability to impose the law of the State, is a project of appropriation of its symbolic power, of its legitimate symbolic violence, replaced by another that impedes the demands of social justice tax equality and its strengthening. The risk is not the State, but its character as a vehicle for democratic social needs, to benefit large business, professional, and technocratic organizations. It is pure Hayek: the protection of dominium – property – before that of the imperium – sovereignty.

 

5.5. Tax protection and informational capital. 

Bourdieu outlines in a certain way the origins of the tax in the modern State. There is a circular causality that links the construction of the army with the introduction of the mass tax. In both cases, the goals are the accumulation by the State of the top informational capital.  (160)

The security of the public order and the territory from external aggressions appears together with the fulfillment of tax duties. The collection of the tax is as vital for the State as military defense. The army is the legitimate representative of the public power to exercise force over those who do not pay: the defaulters are the subjects in a legitimate civil war, in a sense, of justified persecuted in their patrimonies by the State.

The tax collection is a type of internal war carried out by the State agents against the resistance of the subjects who do not comply. The establishment of mass taxes is a kind of civil war. (161)

The State is built on two dimensions of the concentration of symbolic capital: on the one hand, the combination of physical and military power and the police, and on the other, of the institution of monopoly power of taxation. (162)

Tax resistance is overcome by the need to defend the unity of the territory and the people who live in it.

The ultimate result is the totalization of the informational capital of society, information that ceases to be individual and becomes public data (to the limit in statistics).

There is a historical moment in which the unity between the army, tax, patriotism, and informational capital is fractured. Then, the totalizing unity fostered in the construction of the modern State breaks.

The circular causality represented by Bourdieu is different. The tax does not require the army for its application. The State’s symbolic power run through other justifications, such as the constitutional rule or the transfer of sovereignty in the association between States; or military order within supranational organizations.

The security of the Nation obeys a double way. The military defense follows a course that is not shared with the tax authority’s actions, which is based not only on coercion but on trust, reciprocity, and the legitimacy of the relationship between the State and citizenship.

However, the separation of security suffers when the civic sensitivity of taxpayers in the payment of the tax declines. The internal civil war is won by those who fail to comply. Security, however, is fundamental in historical terms. The military defense of the Nation is not possible without an adequate fiscal system to support it. In general, the protection of the public interest is not possible without a proper fiscal system. The monopoly of legitimate coercion is not enough; but rather, social consensus is needed.

Tax protection is closely linked to human security, to protecting the person before any arbitrariness of third parties. This presupposes the production of public goods that serve to perceive public protection in their daily lives.

The circular causality to which Bourdieu points out calls for strengthening the State’s symbolic power, threatened by external and internal forces that erode it, which appears in the taxing authority.

The State politically independent of private interests is the only alternative of autonomy and impartiality, associated in the face of threats to the human security of citizens. The indivisibility of security and tax justice and the State’s role faces one of the aspects, and not the least, of national insecurities, or if you prefer, of the dismantling of their symbolic power.

The State without rent requires the informational capital of the wealth and income produced in its territory hidden from it. The collection of information allows an intelligence system to anticipate the events that lead to the bankruptcy of undesirable social behaviors. The issue arises in the capillary diffusion among large taxpayers of tax planning schemes that channel the massive commercialization of avoidance and evasion and involve the subtraction of tax information and resources.

The G20 set out to channel the notices that are not otherwise available. The explanation is in the boundary of the protective guardianship of the State´s Public Treasury, in the explicit defense of its fiscal interest based on taxation that belongs to it and the obligated subjects.

In the first place, it was the G20 that promoted the general principle of exchange of automatic information of the financial accounts of natural persons, legal entities, trusts and foundations above a certain threshold.

The Common Reporting Standard plays a vital role in the BEPS paradigm because it represents the point of convergence of the common transnational principles that sustain it: transparency, harmful tax competition and aggressive tax planning. The information is not innocent or naïve, it is predefined in the search for undeclared or hidden income in countries that guarded their knowledge to protect them from the tax.

The flow of information carries the defined purpose of fighting against intentional tax evasion and avoidance through aggressive tax planning, taking wealth from some countries to make it immune from tax in another or others. To improve the protection of local tax bases, which is the principal purpose of the BEPS, and it is an information asset qualified by the financial entity itself, obliged to supply it to the national tax administration for referral to other interested jurisdictions of residence, the taxpayer.

The general global and sole principle aims to prevent fraud and tax evasion through opaque financial accounts outside the country of residence .

The multilateral suppport of the G20 counts for reconstitution of the State’s informational capital. This is the first of the manifestations of fiscal protection.

Second, is the introduction of the Country-by-Country Reporting through Action 13 of the BEPS. It allows evaluating the local activity of the transnational company in its accounting, financial, economic, and fiscal aspects – taxes paid and effects of the intra-firm transfer prices practiced. The Country-by-Country Report provides news on the full attribution of income, taxes paid, and specific economic indicators related to the number of workers, capital, undistributed profits, and tangible assets in each jurisdiction where the company operates.

Here, too, the recovery of the symbolic power of the State passes through the facilitation of information lacking in the global value chains operating in its jurisdiction, of which it would not have news if it were not for the contribution of the BEPS.

Third, the duty established by the G20 BEPS –Action 12- on taxpayers, facilitators, and promoters to disclose their aggressive tax planning mechanisms.

The aggressive tax planning offer would not be feasible without the systematic participation of facilitators and promoters dedicated to the commercialization of tax avoidance and evasion schemes, be they lawyers, financial advisers, banking consultants or insurers, tax havens, or offshore centers.

The target is the industry of promoters and facilitators who design and sell artificial reprehensible transaction schemes motivated by obtaining a tax benefit and are abusive because their specific purpose is to minimize the tax.

The meaning of Action 12 goes beyond its text. It is one of the first manifestations of tackling tax avoidance completely, demand and supply of services, locally and internationally, and with sanction for illicit behavior, either by the promoter or in the event of its non-existence, by the taxpayer. What matters here is identifying those who profit from the exploitation and overexploitation of world income, together with the taxpayers.

Finally, the fight for information involves strengthening public regimes on the effective beneficiaries, who own, control or take advantage of legal vehicles and are the definitive holders of the hidden money of the illicit financial flow. (163)

The State has precise instruments to accumulate informational capital, stolen by the work of neoliberal fundamentalism, to the detriment of its tax resources and, likewise, of the human security of taxpayers who comply with their obligations.

Finally, there is an unjustified delay in identifying non-cooperative jurisdictions that continue to attack the ordinary tax states and weaken tax protection.

Almost 40% of direct international investment is through shell companies without economic substance or actual links with the local economy. This amounts to more than 15,000 million dollars located in Luxembourg, the Netherlands, Ireland, Hong Kong, and British Virgin Bermuda, Singapore, Cayman Islands. (164)

The FACTI Report proposes creating a Tax Rights Monitoring Center to collect and disseminate national information and data on taxation and cooperation on a global basis, under the auspices of the UN, including criteria for the execution of money laundering and information on beneficial owners (Recommendation 11). (165)

The recovery of the tax informational capital also requires work to justify the tax protection that allows counteracting the resistance of private interests based on the disinterested interest that must permeate the public function and coordinate with the other States’ data.

 

5.6. Tax protection and defense of disinterested interest.  

In the face of systemic crisis, the State must adopt another profile based on protecting its political autonomy and promoting the legal norm of fiscal empowerment of disadvantaged social sectors, correlating to disempowerment, the loss of power and public influence, of the most favored. It is not an ideological proposal but of mere survival. The disinterested interest is a pledge of public reason and of public and collective good.

The intrinsic vulnerability and dependence of the State on other interests and preferences that are not strictly public and collective predetermine its erratic and capricious activity in the face of questions of the human security of citizens, which are the necessary basis for consensus of the tax system.

The current Fiscal State is the political headquarters of the struggle between neoliberal forces and those that seek to preserve the public word, of public reason. Neoliberal globalization serves for the explosion of systemic risks and accidents that exacerbate the vulnerability of the general tax system itself and the citizens of the community. The purpose and objective are: less State; more individual; less disinterested interest, more selfish interest.

The first objective of human security is protection from the State or the citizen. A crisis tax system that deviates from its essential principles does not offer safety and destroys it because it breaks the trust, legitimacy, and integrity of good governance.

The reform of the tax system is implicit in protection and civic empowerment. Inequality of treatment at parity of ability to pay is a source of insecurity. It is impossible to demand sacrifices of contribution to public spending without correlation to the social position of the taxpayers. Conversely, it makes no sense to distribute public resources without giving preferential attention to those most sensitive to threats and risks and vulnerable to their consequences.

The insufficiency of tax resources cannot serve as an excuse to ignore the most urgent social needs. There is no other urgency than the design to face them and step by step, as far as possible, to approach the solution of the most pronounced vulnerabilities.

The departure of the tax system from the criteria of equality, ability to pay and progressivity unloads the burden of taxes on the economically less privileged majority. Low taxation restricts the provision of public goods that can meet the essential needs of the people. The unequal tax system restricts the freedoms of the person’s needs.

The contribution to public spending is unequal because taxpayers are not subject to a similar treatment of ability to pay and progressivity. This accentuates the vulnerability of the majority who lack the freedoms, power, and capacities to respond to political insufficiency, institutional corruption, and submission of the State under particular interests.

The most influential social groups take advantage of opportunities that are alien to others, increasing the conditions of inequality, such as those derived from climate change, digitization, COVID-19 pandemics, intentional tax avoidance practices, and evasion.

On the one hand, the tax system is undermined in selecting the sources of low and middle ability to pay workers, middle classes, small and medium-sized enterprises, consumers, in a sense contrary to the strengthening of equality. On the other, because it renounces from the beginning the tax system’s progressivity to fight against intentional tax avoidance and evasion of the taxable capacity of higher incomes. (166)

The tax inequality is systemic (“discrimination is systemic”) and is linked to the inability of the tax system to tax high incomes, equity, and business profits.

Inequality increases as the progressivity of the tax system decreases, which should tax wealth, income, and the profits of local or external companies more than proportionally. (167)

Regressive taxes apply to the imposition of better-controlled taxpayers, such as workers, small and medium enterprises, real estate owners and consumers. Progressivity in reverse: more taxes on quantity and less on the quality of taxpayers. In addition, fiscal impoverishment condemns the poor to bear on their backs the reimbursement of state aid that they eventually and exceptionally receive.

Resistance to change calls into question the protection of the status quo of the current legal system to avoid negative expectations from the market, the wealthiest, multinational companies and local companies that imitate them.

RBReich indicates three modes of oligarchic preservation of power in the United States, which could be generalized.

First, market fundamentalism as the exclusive and exclusive source of power and wealth for the (few) who deserve it.

Second, corruption to obtain favors and secure their positions: lawyers, tax advisers, real estate agents, bankers, money managers, accountants, lobbyists, politicians, public officials.

Third, the creation of threats and the division of all social forces that could threaten their power. (168)

The justification of the tax protection of the State is only feasible if, at the same time, the notion of legitimacy of the public interest and the social interest of allegiance is recovered. The accumulation of information and impartiality in the face of arbitrariness will not be enough, without the contemporary take in consideration of tax fairness.

Neoliberalism increases social divisions and legitimizes global inequalities. The neoliberal utopia stimulates and develops the marginalization and impoverishment of the State and people without income. It is not an approach without consequences: the neoliberal ideology destroys the principle of human security.

 

CONCLUSION

Complexity is the name of the reality we inhabit. It isn’t easy to accept because it comes to destroy any of the certainties in which we grew up.  There are no simple answers to help us with current problems.

E.Morin is right when he qualifies complexity as a leap forward in knowledge and suggests -the dialogical principle- the community of opposites: order/disorder, organization/disorganization, unity/diversity; union/separation; system/parts.

Complexity does not equal complication. The difference is that the complication always reaches its predictable result, with greater or lesser difficulty, which is not attributable to complexity. The complex system is unpredictable and goes hand in hand with non-linearity, it does not equal the sum of its agents or actors, and each function can be interrupted, blocked, or at the limit disappear. Unpredictability responds to non-linearity, to the science of surprise.

The complex system indicates the non-linear interaction of its elements and the appearance of a capacity for spontaneous self-organization that allows it to alter its structure and arrive at an emergency, positively or negatively, concerning its environment.

Non-linear interactions are the basis of change and instability of the complex adaptative system; qualitative changes in the interconnections of the units are carriers of extreme unforeseen events that cause or may cause the change of trajectory of the system itself.

The unpredictability anticipates the probability of reaching limit situations, forward or backward, leading to catastrophes, emergencies, to an order exposed in its evolution and adaptation to systemic shocks.

Complexity sums up the paradigm of perpetual instability, a constant imbalance between systemic order and disorder: far from equilibrium, the complex system lives “on the edge of chaos.” (Mc Taylor). Remote and unusual connections between agents or elements can bring down any system.

The system concept comes from L.von Berthalanphy: “sets of elements standing in interaction.” For J. Holland: “A Complete Adapatative System is a complex, self-similar collectivity of interacting adaptive agents.”

The bases of the complexity and CAS are: the combination and grouping of individuals; the non-linearity; the diversity of the elements, which can strengthen or weaken the system’s resilience; the information flows between the parties.

Any economic, social, political, legal system is a complex system. Then, the predicted properties are common to a broad scientific record, both natural and social or economic.

The complexity of the natural sciences invades all areas of knowledge, but it is strongly resisted by the social sciences, particularly legal science.

The adaptative legal system references are diversity, non-linearity, spontaneous self-organization. The law qualifies these properties from its definitions: integration and diversity, effectiveness, legitimacy.

Integration and diversity contemplate the universality required for the legal system to include all its parts.

Effectiveness is the ability of the law to generate social, economic, and legal effects that transcend the coercive horizon. The interactions between the parties, even the non-integrated ones, are non-linear, and their dynamics can collapse the legal system. The legal name of non-linearity is the effectiveness of the norms. The ineffective norm is a non-linear norm without a function.

In all its aspects, legitimacy is a masterful way of spontaneous self-organization of the legal system in general. Legitimacy means accepting authority whenever it is justified, both by social acceptance and by exercising powers. The questioned legitimacy feeds the breach of the law. The citizen does not believe in the government and therefore is reticent in his social will to cooperate.

The tax system is a complex legal system.

Why is the legal tax system a complex system?

Its elements are decidedly large, widespread, and diverse in each individual, position, and habitus. These elements interact dynamically in a constant exchange of information; the level of interaction is high; the interactions are not linear and are asymmetric.

The tax system is part of the legal system and contains the defining criteria of the complex social system. There are integration and diversity of the elements, effectiveness of the legal norms, and legitimacy of the State’s public power actions.

The strength of the tax system depends on integrating all in a position to improve it, increasing its diversity, effectiveness, and legitimacy. The expansion of social interactions means more diffusion of the law and resilience to its effectiveness and legitimacy erosion.

The State does not obtain sufficient resources because its trajectory affects the most vulnerable social categories while renouncing the fair tax on those with more ability to pay. The consequence is public deprivation for the provision of essential public goods. Even more, leaving the under-protected to risk in the face of the emergence of systemic risk, a chain disaster- climate change, pandemia, digitalization, tax erosion, and evasiòn of illicit financial flows.

The surprise takes place in the limits of the tax rule of law’s effectiveness, not its mere efficacy. Non-linearity implies the awareness that the institution and application of the law do not express every one of the effects, not only legal, that it causes, or the assessment that effects are simultaneously legal, social, political, economic.

The contraposition between form and substance is clear. The formal, literary, textual norm, which lacks principles and purpose, nurtures its ineffectiveness. Substantial consideration, with a specific purpose and the ratio legis that justifies it, on the contrary, strengthens effectiveness.

The corollary is clear: the formal channels sustain the abuse of law; the letter is the mean where the words of the law are like recipes for avoidance (D. Mc Barnet)

Legitimacy is the name of the spontaneous self-organization of the system. It describes the interrelationships forged between people grouped for various reasons, unified on their response to the legitimacy of compliance / non-compliance with the tax.

The State is impotent in front of the widespread tax non-compliance, driven by those with more economic, social, and political privileges, including tax benefits. Those distill false financial illusions about inequality to attract ordinary taxpayers, who live circumstances differently. And who participate in the quasi-spontaneous fulfillment of their obligations. Small State or lesser taxes isn’t the same for the wealthy and the poor. The tax is bad in itself, and its only justification is to avoid it.

The State loses legitimacy and trust because there is no correspondence between the tax and the provision of essential public goods. It increases the vulnerability of the underprotected. Furthermore, lacks political autonomy from those sectors and private economic, social and cultural interests with more symbolic power.

The new paradigm is the return of the State and the institution of a new global public domain. The right to the protection of the State, sustained in the G20 (BEPS), defines each country’s right to protect its tax base from erosion and profits shifting as a guarantee of the tax collection wherever the creation of profit and value is.

The fight is against the global illicit financial flow of value chains, wealthy taxpayers, organized crime, corruption, evasion, and tax avoidance.

Taxpayers who enjoy advantages in a State market and originate their profits must pay taxes on their activity. But not only. Protection means that the State can also regulate other revenue which derives from tax value without underlying economic activity and whose source is tax planning reduction, minimization, or deferral (e.g., from intentional tax avoidance or evasion).

The G20 goals are common transnational principles against aggressive tax planning, tax avoidance, and harmful tax competition to recover the hidden informational capital. The principal instruments are the general principle of automatic global exchange of financial accounts, the Country-by-Country Report, and the obligation of the facilitators and promoters to disclose its aggressive tax planning mechanisms.

The State is the political seat of the struggle between neoliberal forces and those that seek to preserve the public domain and the community sense. Globalization serves for the explosion of risks and systemic accidents that simultaneously exacerbate the collective and the general tax system’s vulnerability. The purpose and objective are: less State; more individual; less disinterested interest, more selfish interest. Or the recovery of the symbolic power of the State as P. Bourdieu taught.

 

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