Abstract
In this paper, I point out that since the late 1960s, Brazilian tax law scholarship has increasingly rejected any attempt to integrate economic perspectives in the interpretation of tax legislation. The prevailing theory suggests that tax jurisdictions established in the Brazilian Constitution should be interpreted based on concepts from private law and should disregard any consideration of the economic context referred to by the constitutional legislator. Building on Luhmann’s systems theory, which suggests that operational closure of the legal system requires cognitive openness to other social subsystems, I argue that the predominant Brazilian tax theory (which I call private law approach) gives rise to two central problems. First, it reinforces an unseemly propensity toward literal interpretation. Second, by repudiating the economic context envisaged by the constitutional legislator, Brazilian tax scholarship fails to fulfill its primary role of describing the law and thereby stabilizing normative expectations.
Legal interpretation; private law approach; economic interpretation of tax law; systems theory; social function of legal doctrine