Dr. Messaoud Saoudi
Associate Professor of Public Law
Faculty of Law, Jean Moulin Lyon 3 University,
Lyon, France

Abstract:

For a long time, the royal power attributed the fiscal competence to levy the tax without the consent of the subjects of the Kingdom: thus under the French ancient Régime, from 1640 to 1789, the exclusive principle of royal consent to raise tax was a slightly different situation in the British case. The text then often invoked the Great Charter of 1215 (Magna Carta) where King John the Landless agrees to consult the representatives of his subjects before any new imposition. The French DDHC of 1789, in turn, seems to mark a certain break by establishing the non-exclusive principle of royal consent to tax. Since the 18th century, tax as a sovereign right of the People / Nation has thus replaced tax as the sovereign right of the King / Queen. This double material (revenue and expenditure) and institutional (Parliament and Government) authorization takes on an annual character and will be carried out in legislative form (budget law to finance law). This is a collective consent (nation) and not individual (Art. 14 of the DDHC). To do this, this sovereign right seeks a balance between consent to tax (legitimacy) and consent to tax (legality).
The historical foundations of tax consent reveal the need to reconcile the legitimate state and the legal state, consent to the tax which is at the source of the sovereign right of the State to levy the tax. Is not the current state crisis linked to the unstable balance between tax legitimacy and legality? The theories of sovereignty and taxation shed light on the relationship between the rule of law and citizen-taxpayers. They recall that a democratic society draws its political foundations from the historical principle of consent to tax, thus giving rise to tax law which establishes the legitimacy and monopoly of the sovereign fiscal power of the State. The health crisis caused by the Covid-19 pandemic has revealed the financial and economic fragility of States. Their sovereign fiscal power to raise taxes is limited in times of major social crisis. The necessary balance between legitimacy and legality of taxation is the basis of the existence and continuity of the rule of law.

Keywords: tax legitimacy, tax legality, financial executive, legislative authorities, Religious basis of tax.

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