Hostname: page-component-cd9895bd7-hc48f Total loading time: 0 Render date: 2024-12-24T22:00:37.377Z Has data issue: false hasContentIssue false
  • English
  • Français

Biblical Tax Systems and the Case for Progressive Taxation

Published online by Cambridge University Press:  24 April 2015

Adam S. Chodorow
Get access Rights & Permissions [Opens in a new window]

Extract

The political rise of the religious right has brought to the fore the question of whether and to what extent religious values and beliefs should be taken into account when developing public policy. Policymakers have increasingly, or perhaps only more overtly, turned to religion for guidance on important public policy matters, such as abortion, stem cell research, and punishment, including the death penalty. Given the decidedly moral flavor of the debate over distributive justice, it is not surprising that many Americans and a growing number of policymakers have begun to look to religion for guidance on the question of how best to allocate tax burdens.

While tax scholars have long debated questions of equity and distributive justice, with one notable exception, they have largely ignored religious arguments. Given the large number of Americans who identify themselves as religious, to say nothing of most politicians, limiting the inquiry into tax equity to secular arguments runs the risk of relegating academic debate to the sidelines, as decision-makers look to the Bible and other religious texts for guidance and support.

Type
AALS Jewish Law Section Papers
Information
Journal of Law and Religion , Volume 23 , Issue 1 , 2007 , pp. 51 - 96
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2007

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Reliance on religious values to inform social policy decisions is not new. However, it appears to have garnered increased respectability over the last two decades. For a discussion of earlier examples of the interplay between religion and social policy, see Hamill, Susan Pace, An Argument for Tax Reform Based on Judeo-Christian Ethics, 54 Ala. L. Rev. 1 n. 2 (2002) [hereinafter An Argument for Tax Reform]Google Scholar.

2. For a discussion of the role of religion in determining public policy for a host of different issues, see The Role of Religion in Health Law and Policy Symposium, 6 Hous. J. Health & L. Policy (2006)Google Scholar. For a discussion of what role the Old Testament should play in formulating policy regarding punishment, see e.g. Samuel J. Levine, Symposium: Thoughts on Death Penalty Issues 25 Years after Furman v. Georgia, 29 St. Mary's L.J. 1037 (1998) (examining reliance on the Old Testament to oppose or support the use of the death penalty); Pritikin, Martin K., Punishment, Prisons, And The Bible: Does “Old Testament Justice” Justify Our Retributive Culture?, 28 Cardozo L. Rev. 715 (2006)Google Scholar. The rising influence of religion can also be seen in the fights over teaching intelligent design in public schools, see e.g. Kitzmiller v. Dover Area Sch. Dist., 400 F.Supp.2d 707 (M.D. Pa. 2005) (holding the teaching of intelligent design in public schools to be in violation of the establishment clause), displaying religious symbols in public spaces, see e.g. McCreary Co. v. ACLU, 545 U.S. 844 (2005) (holding that a display of the Ten Commandments was not sufficiently secular to allow the display in a public space), and government sponsorship of faith-based initiatives to help the poor. See e.g. Strossen, Nadine, What Role Should Religion Play (or not Play) in our Public Policy?, 23 T.M. Cooley L. Rev. 131 (2006)Google Scholar (discussing the propriety of government funding for faith-based social initiatives).

3. This turn to religion is most notable in Alabama's recent, but failed, effort to reform its tax system. See infra text accompanying nn. 25-32.

4. The seminal article on this question is Blum, Walter J. & Kalven, Harry Jr., The Uneasy Case for Progressive Taxation, 19 U. Chi. L. Rev. 417 (1952)CrossRefGoogle Scholar, in which the authors first identify a number of theories that purportedly support progressive taxation and then systematically demonstrate why each is problematic. Since then, numerous scholars have joined the debate, raising a host of arguments on one side or the other. See e.g. Bankman, Joseph & Griffith, Thomas, Social Welfare and the Rate Structure: A New Look at Progressive Taxation, 75 Cal. L. Rev. 1905 (1987)CrossRefGoogle Scholar (applying the tools of optimal tax theory to design a functionally progressive, but nominally regressive tax system); McMahon, Martin J. Jr. & Abreu, Alice G., Winner-Take-All Markets: Easing the Case for Progressive Taxation, 4 Fla. Tax Rev. 1 (1998)Google Scholar (arguing that the increase in “winner-take-all” markets supports greater progressivity because those who earn staggeringly large sums cannot truly be said to be entitled to keep their income); Griffith, Thomas D., Progressive Taxation and Happiness, 45 B.C. L. Rev. 1363 (2004)Google Scholar (arguing that progressivity increases subjective well-being by reducing relative wealth disparities); Avi-Yonah, Reuven S., Why Tax the Rich? Efficiency, Equity and Progressive Taxation, 111 Yale L. J. 1391 (2004)CrossRefGoogle Scholar (reviewing Does Atlas Shrug? The Economic Consequences of Taxing the Rich (Slemrod, Joel B. ed., Russel Sage Foundation, Harv. U. Press 2000 Google Scholar). This book explores the empirical underpinnings of the economic arguments for and against progressive taxation).

5. Some early tax theorists identified the question of apportionment as a moral issue and tied it to Christian ethics. For instance, Professor Henry Adams cited to the typical church practice where those with more generally contribute more than those with less to support the proposition that “ability to pay” should be the guiding principle in allocating tax burdens. He referred to the practice as deriving from the “New Testament doctrine of service” and stated that its acceptance as a canon of modern taxation “showed that the modern science of finance recognizes one of the fundamental principles of Christian ethics.” See Adams, Henry Carter, The Science of Finance 328–332 (Henry Holt & Co. 1889)Google Scholar. However, he did not explore any textual or doctrinal basis for this statement. Moreover, in his analysis of whether the “ability-to-pay” principle supported proportional or progressive taxation, he examined only secular socialist and economic arguments.

Professor Susan Pace Hamill is the first tax scholar to address the religious arguments head on. She has argued that Judeo-Christian ethics “is the moral compass chosen by most Americans” and that it is appropriate to evaluate tax policy based on the dictates of such a compass. Hamill, Susan Pace, An Evaluation of Federal Tax Policy Based on Judeo-Christian Ethics, 25 Va. Tax Rev. 671, 674 (2006)Google Scholar [hereinafter Federal Tax Policy]. She further claims to have

theologically prove[n] that the moral principles of Judeo-Christian ethics require tax policy structures that both raise adequate revenues providing all citizens a reasonable opportunity to reach their potential, and allocate the burden for paying the taxes under a moderately progressive model.

Id. at 679. See also Hamill, An Argument for Tax Reform, supra n. 1.

Largely as a result of Professor Hamill's work, other tax scholars have begun to consider religious arguments. See Chodorow, Adam S., Tax Reform—What would God do?, 108 Tax Notes 1167 (09 5, 2005)Google Scholar; Michael A. Livingston, Rendering Unto Caesar: Religious Approaches to the Progressive Income Tax, http://ssrn.com/abstract=939052 (Jan. 2006) (concluding that religious arguments are no more definitive on the question of progressive taxation than traditional secular arguments). Others have referenced religion in connection with distributive justice, see e.g. McMahon, Martin J., The Matthew Effect and Federal Taxation, 45 B.C. L. Rev. 993 (2004)Google Scholar (citing a parable in Matthew for the proposition that the rich are getting richer, while the poor get poorer); Schenk, Deborah H., The Luke Effect and Federal Taxation: A Commentary on McMahon's The Matthew Effect and Federal Taxation, 45 B.C. L. Rev. 1129 (2004)Google Scholar (citing a parable in Luke for the proposition that the wealthy will not easily give up their wealth), but only for rhetorical effect.

6. As Professor Hamill notes, over 75% of all Americans identify themselves as Christian, while another 1.3% identify themselves as Jewish. The percentages are even higher for elected officials. Hamill, Federal Tax Policy, supra n. 5 at 675-676.

7. See e.g. National Conference of Catholic Bishops, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy (U.S. Catholic Conference 1986)Google Scholar (available at http://www.osjspm.org/economicjustice_for_all.aspx) [hereinafter NCCB]; Call for a Rebirth of Compassion, in United Methodist Church, Book of Resolutions (The United Methodist Church Publishing House 2000)Google Scholar (resolution available at http://archives.umc.org/interior.asp?ptid=4&mid=918) (adopted 1996; but does not appear in current version of the Book of Revelations). The resolution states: “We call on our people to support candidates for office who are committed to policies of full employment, universal health insurance, long-term health care, quality public education for all children, reduced military spending, and progressive taxation.”

8. See e.g. Palmer, Gary, Where's the Fairness in Tax System, Thomasville Times 4 (09 3, 2003)Google Scholar (available at http://members.tripod.com/~wwx2/tax.html).

9. This article is the third piece in a broader project to look at issues in taxation through the lens of Jewish tithing practices. The first article, Agricultural Tithing and (Flat) Tax Complexity, 68 U. Pitt. L. Rev. 267 (2006)Google Scholar, considers questions of tax complexity by looking at the agricultural tithing rules found in the Tosefta and Talmud. The second article, Maaser Kesafim and the Development of Tax Law, 8 Fla. Tax. Rev. 153 (2007)Google Scholar, explores the way culture and context affect the development of tax law by comparing the rules developed for maaser kesafim with similar federal income tax rules. A central goal of this project is to make the source material known to and accessible by American tax scholars.

10. In the Jewish tradition, the Talmud contains parts of the revelation on Mt. Sinai that were not included in the Torah (the first five books of the Bible) but were passed down orally until committed to writing in the Talmud. The Talmud consists of the Mishnah and the Gemara. The Mishnah is a redaction of rabbinic notes dating to the third century CE. The Gemara was redacted around the sixth century C.E. and expounds on the Mishnah. The material in the Talmud is presented through discussions among respected rabbis and includes both the revelation on Mt. Sinai and the opinions of the rabbis on important legal questions. At times, it is difficult to distinguish between the two. For a more complete discussion of the provenance and structure of Jewish law, see Elon, Menachem, Jewish Law: History, Sources, Principles (Jewish Publication Socy. 1994)Google Scholar; An Introduction To The History And Sources Of Jewish Law (Hecht, N.S. et al. eds., Clarendon Press, Oxford U. Press 1996)CrossRefGoogle Scholar.

The Mishnah and Talmud have been translated several times. For those interested in reading these texts in translation, I would recommend the Artscroll Mishnah Series, published by Mesorah Publications, Ltd. There are two versions of the Gemara, commonly referred to as the Jerusalem and the Babylonian Talmuds. Although there is some overlap between the coverage of the Jerusalem and Babylonian Talmuds, the Jerusalem Talmud was written in Israel, and it covers in great detail the laws that apply to activities undertaken in Israel. Such coverage is missing from the Babylonian Talmud. The effort to compile the Jerusalem Talmud was cut off when the authors were expelled from Israel, and therefore it is shorter than the Babylonian Talmud. It is also less authoritative. The definitive version of the Babylonian Talmud was compiled by the Romm family in Vilna in the late 19th and early 20th centuries and is commonly referred to as the Vilna Shas. The best English translation is the Shottenstien Edition, published by Mesorah Publications, Ltd.

11. Maaser means one-tenth. Kesafim means silver or money. This phrase translates as “a tenth of money” and refers to the practice of separating out a portion of one's income to be used for charitable purposes. The word maaser alone is often used to refer to the amount separated as the tithe.

12. This effort to place religious tax practices in context to determine what lessons they teach is similar to earlier scholarly efforts to put references to punishment and the death penalty found in the Bible and Talmud into their proper context. See Pritikin, supra n. 2; Levine, supra n. 2.

13. Under horizontal equity, similarly situated people are to be treated equally. Under vertical equity, differently situated people should be treated differently.

14. In fact, the benefits principle has two formulations. The first, which Professor Joseph Dodge calls the “contractarian” theory, operates as described above. The second formulation, which Professor Dodge calls the “new benefit principle,” posits a direct link between income and benefits received, such that income becomes the measure of benefits received, and therefore the basis for imposing taxes. See Dodge, Joseph M., Theories of Tax Justice: Ruminations on the Benefit, Partnership, and Ability-to-Pay Principles, 58 Tax L. Rev. 339 (2005)Google Scholar (criticizing both versions the benefits theory as deeply flawed).

For a defense of the new benefits theory, see Geier, Deborah A., Incremental Versus Fundamental Tax Reform and the Top One Percent, 56 Smu L. Rev. 99 (2003)Google Scholar (arguing for a blend of the benefits and ability-to-pay theories of taxation as the guiding principle for distributing tax burdens); Geier, Deborah A., Time to Bring Back the “Benefit” Norm?, 33 Tax Notes 893 (03 8, 2004)Google Scholar.

15. The equal sacrifice principle posits that each person should bear the same tax burden, but it defines that burden in terms of sacrifice a person makes in paying the tax. See Ely, Richard T., Taxation in American States and Cities 237–245 (Thomas Y. Crowell & Co. 1888)Google Scholar (advocating that equal sacrifice be the principle that guides the allocation of tax burdens). On the assumption that money has a declining marginal utility, some have argued that those with more money must pay progressively more than those with less money to ensure equal sacrifices among taxpayers. Under such an approach progressive taxation is not seen as redistributive. For an analysis of the equal sacrifice principle and whether it supports progressive taxation, see Blum & Kalven, supra n. 4, at 455-479 (arguing that this principle fails to justify progressive taxation).

The ability-to-pay principle has many permutations but generally consists of the notion that tax burdens should be allocated based on a person's ability to pay them. Thus, some argue that ability-to-pay should function as the measure of whether taxpayers are similarly situated, and therefore liable to pay the same amount in taxes. For a discussion of the ability-to-pay principle, see Dodge, supra n. 14 (asserting that the ability-to-pay theory is the most appropriate principle for allocating tax burdens); Utz, Stephen, Ability To Pay, 23 Whittier L. Rev. 867 (2002)Google Scholar (arguing that the ability-to-pay theory has serious limitations that are often overlooked).

16. Some argue that the only way the traditional approach and concern for horizontal equity can be sustained as a guiding principle is if one assumes the moral correctness of the original distribution of the tax base, e.g., income or the resources used in consumption. See e.g. Murphy, Liam & Nagel, Thomas, The Myth of Ownership: Taxes and Justice (Oxford U. Press 2002)CrossRefGoogle Scholar (arguing that pre-tax income lacks moral significance and therefore cannot be used as a basis for determining appropriate tax rates or burdens); Elkins, David, Horizontal Equity as a Principle of Tax Theory, 24 Yale L. & Policy Rev. 43, 87 (2006)Google Scholar (concluding that “justification of horizontal equity depends on the moral entitlement of each individual to his free-market holdings”). Consequentialist arguments are not dependent on the opposite assumption.

17. See e.g. Rawls, John, A Theory of Justice (rev. ed., Bellknap Press of Harv. U. Press 1999)Google Scholar; Rawls, John & Kelly, Erin, Justice as Fairness: A Restatement (Harv. U. Press 2001)Google Scholar. For a discussion of what Rawls's theory would require from a tax system, see Sugin, Linda, Theories of Distributive Justice and Limitations on Taxation: What Rawls Demands from Tax Systems, 72 Fordham L. Rev. 1991 (2004)Google Scholar (arguing that a consequentialist approach to distributive justice can impose constraints on tax systems but cannot require any specific type of tax); see also Murphy & Nagel, supra n. 16.

18. NCCB, supra n. 7 at “Introduction” ¶ 12 (“The pastoral letter is not a blueprint for the American economy. It does not embrace any particular theory of how the economy works, nor does it attempt to resolve disputes between different schools of economic thought. Instead, our letter turns to scripture and to the social teachings of the Church. There, we discover what our economic life must serve, what standards it must meet.”).

19. Id. at “Introduction” ¶ 7.

20. Id. at “Introduction” ¶ 16. See also id. Id. at ¶¶ 48-55.

21. Id. at “Introduction” ¶ 13.

22. Id. at ¶ 70. See also id. at ¶ 74:

Basic justice also calls for the establishment of a floor of material well-being on which all can stand. This is a duty of the whole of society and it creates particular obligations for those with greater resources. This duty calls into question extreme inequalities of income and consumption when so many lack basic necessities. Catholic social teaching does not maintain that a flat, arithmetical equality of income and wealth is a demand of justice, but it does challenge economic arrangements that leave large numbers of people impoverished.

This standard is strikingly similar to that John Rawls articulated, though Rawls has stripped his version of any religious overtones. See Rawls, supra n. 17.

23. Id. at ¶ 76. Note 32 cites ¶ 132 of the encyclical Mater et Magistra, on Christianity and Social Progress, issued by Pope John XXIII on May 15, 1961 (available at http://www.vatican.va/holy_father/john_xxiii/encyclicals/documents/hf_j-xxiii_enc_15051961_mater_en.html). That paragraph reads: “132. In a system of taxation based on justice and equity it is fundamental that the burdens be proportioned to the capacity of the people contributing.”

24. NCCB, supra n. 7 at ¶ 202. The full paragraph reads:

d. The tax system should be continually evaluated in terms of its impact on the poor. This evaluation should be guided by three principles. First, the tax system should raise adequate revenues to pay for the public needs of society, especially to meet the basic needs of the poor. Secondly, the tax system should be structured according to the principle of progressivity, so that those with relatively greater financial resources pay a higher rate of taxation. The inclusion of such a principle in tax policies is an important means of reducing the severe inequalities of income and wealth in the nation. Thirdly, families below the official poverty line should not be required to pay income taxes. Such families are, by definition, without sufficient resources to purchase basic necessities of life. They should not be forced to bear the additional burden of paying income taxes.

(footnote omitted) (emphasis in original)

At least one commentator has argued that these same principles should govern diocesan taxes within the Catholic Church. Barrett, Matthew J., The Theological Case for Progressive Taxation as Applied to Diocesan Taxes or Assessments under Canon Law in the United States, 63 The Jurist 312–365 (2003)Google Scholar.

25. Hamill, An Evaluation of Federal Tax Policy, supra n. 5. See also Hamill, An Argument for Tax Reform, supra n. 1.

26. Hamill, An Evaluation of Federal Tax Policy, supra n. 5 at 675-710; see also Hamill, An Argument for Tax Reform, supra n. 1, at 51-66.

27. Hamill, An Evaluation of Federal Tax Policy, supra n. 5 at 678. See also Hamill, An Argument for Tax Reform, supra n., 1 at 78 (suggesting that leaders could consider adopting a mildly progressive rate schedule to relieve the poor of their heavy tax burden).

28. Pascual, Lisa San, The Social Gospel Lays an Egg in Alabama, www.trincoll.edu,/depts/csrpl/RINVol6N03/Social%20gospe!%20lays%20egg.htm (Fall 2003)Google Scholar (“On the campaign trail, [Governor Riley] attributed his conversion to progressive taxation to a book, The Least of These: Fair Taxes and the Moral Duty of Christians, published in 01 2003 by Hamill, Susan Pace, a University of Alabama law professor.”)Google Scholar.

29. The existing tax system imposed income taxes on people with incomes of only $4,600. The proposal would have exempted people with incomes up to $17,000 from income tax. See Smietana, Bob, Alabama Governor Says Faith Drives Tax Hike, www.beliefnet.com/story/129/story_12980_1.html (2003) (accessed Nov. 21, 2007)Google Scholar.

30. See e.g. id. (“Alabama Gov. Bob Riley, a conservative Republican and Southern Baptist, has proposed a $1.2 billion tax package that raises taxes on the wealthiest residents and businesses and cuts taxes on poor families. Riley argues that he has a moral obligation to do so. …”).

31. Id. (describing religious leaders who supported the Alabama tax reform proposal).

32. Palmer, supra n. 8, at 4.

33. Two decisions regarding my approach require clarification. The first is my decision regarding which texts and practices to consider as possible evidence of Judeo-Christian values as they relate to tax equity and distributive justice. The second is my decision to focus on the literal descriptions of these tax systems and set aside questions regarding their provenance and relation to historical fact.

First, in discussing Judeo-Christian values, the question necessarily arises as to which texts and examples to consider. In particular, one must decide whether to infer values only from those practices described in shared Jewish and Christian texts, i.e., the Old Testament, or whether to include practices described in texts claimed by one religion, but not the other, i.e., the New Testament and Talmud. The use of tax systems described in the Talmud could lead some to claim that those practice reflect only Jewish values. Use of New Testament could engender an “only Christian” claim. Given the wide variety of beliefs regarding the provenance of, and weight to be given to, the Old and New Testaments and the Talmud, I have decided to include the examples of taxation found in the sacred texts of both religions and leave it to others to argue about the relevance of the examples to their own religious world views.

The New Testament refers to taxation at various points, but it does not describe any particular tax system. This leaves the Talmud as the only “one-religion” source. For those inclined to dismiss material from the Talmud as reflecting Jewish views, I note that maaser kesafim represents an attempt to implement Biblical mandates to do charity. Both Abraham and Jacob tithed, and this obligation to do charity is a central tenet of Christianity. Virtually every Christian group has adopted the practice of tithing. Thus, even though it is developed in the Talmud, it is a shared tradition. The discussions of communal expenditures in the Talmud closely mirror current discussions of distributive justice and provide the best and most direct evidence of how early religious leaders thought about these issues. No evidence exists suggesting that early Christian communities approached these questions differently.

This raises the related question of whether the examples I have chosen should properly be described as tax systems. The definition of a “tax” is a matter of some debate, and a religious obligation to contribute to the temple or give to the poor arguably does not qualify as such. While these systems may not qualify as taxes under some definitions, they operate as tax systems in most regards. They reflect obligations imposed on individuals to fund communal obligations, including group sacrifice and support of the priesthood and the poor, and the common defense. For purposes of this analysis, it is not relevant that they are articulated as personal obligations, as opposed to communal obligations that are then allocated to individuals. For a discussion of the question of how one defines a tax, see Adams, supra n. 5, at 289-302. For a more recent discussion, see Thuronyi, Victor, Comparative Tax Law 45–59 (The Hague 2003)Google Scholar. For purposes of this article, what matters is that arguably implicit in each example is a principle or theory of how this communal burden should be allocated.

The Bible contains other examples that could be considered tax systems, such as maaser behaima (the practice of tithing livestock that ceased with the destruction of the temple), Lev 27:32, and a host of other required offerings, including bikkurim (first fruits) and bechor (first born animals). Exod 13:2, 22:28-29. I have chosen to focus on the four practices identified above because they are representative of different approaches to allocating communal burdens.

Second, I have largely ignored differences between the Biblical and Talmudic accounts of these tax systems and the competing religious and academic beliefs regarding their provenance and how they operated. Where appropriate, I have highlighted the disputes among religious and academic thinkers about where a tax came from and how it functioned. However, I have chosen to focus primarily on the perhaps idealized descriptions and explanations contained in the Bible and Talmud. I am interested in the visions of distributive justice and values allegedly inherent in these practices, which these accounts capture. For an account of the academic scholarship on the development of the Bible, see Friedman, Richard E., Who Wrote the Bible? (Prentice Hall 1987)Google Scholar.

34. For a discussion of the temple and the various offerings associated with the temple, see Edersheim, Alfred, The Temple: Its Ministries and Services (Hendrickson Publishers, Inc. 1994)Google Scholar.

35. Exod 30:12-16. Hashem literally means “the Name” and is used as a euphemism for God (all Bible quotations are from The Stone Edition of the Tanach, published by the Mesorah Heritage Foundation, as part of the ArtScroll Series, c. 1996 Mesorah Publications, Ltd.).

36. Id. at 38:25-28.

37. See e.g. Talmud, B., Megilla 29bGoogle Scholar. Some scholars have suggested that the account of Moses and the census was added to Exodus at about the time the temple was built to provide authority for the heavy taxes necessary to fund the building of the temple. See e.g. Montefiore, Hugh, Jesus and the Temple Tax, 10 New Testament Stud. 60 (1964)CrossRefGoogle Scholar. Under such a theory, the Tent of Meeting should be understood as a forerunner of the Temple; the obligation transferred to the Temple as soon as it was built.

38. 2 Chron 24:1-14.

39. Levites were temple servants who were the descendants of Levi (the son of Jacob and Leah). Num 3:5 et seq.

40. 2 Chron 24:5.

41. Id. at 24:6. At least one scholar has asserted that the reference here to the laws of Moses reflects not the half-shekel tax of Exod 30:11-16, but rather the obligations regarding offerings to be made to God, as reflected in Exod 25 et seq. Liver, J., The Half Shekel Offering in Biblical and Post Biblical Literature, 56 Harv. Theotogical Rev. 173, 179 (1963)Google Scholar.

42. 2 Chron 24:9. Some Biblical scholars might accept that the account of the census in Exodus predates the events described in Chronicles but view the appeal to the census as a cynical attempt to justify an otherwise unrelated tax.

43. Id. at 24:12-14.

44. Id. at 34:8-17.

45. Id. at 34:10. For an academic account of this discovery and the subsequent reforms, see Levinson, Bernard, The First Constitution: Rethinking the Origins of Separation of Powers and Rule of Law in Light of Deuteronomy, 27 Cardozo L. Rev. 1853 (2006)Google Scholar (arguing that Deuteronomy was written and then “discovered” in the temple walls to lend authority to political and religious reforms crafted by King Josiah and his religious advisors); Friedman, supra n. 33.

46. The laws of the half-shekel tax apply only while the Temple stands. Mishnah, , Shekelim, ¶8:8 Google Scholar.

47. Neh 10:33. (“We also instituted commandments upon ourselves to give one third of a shekel yearly toward the service of the Temple of our God.”).

48. See e.g. Liver, supra n. 41, at 185.

49. Nachmanides commentary in Perush ha-Ramban 'al ha-Torah (Mesorah Publications 2006)Google Scholar on Exod 30:12. Nachmanides concluded that the amount of the tax was the same, and the discrepancy reflects different coinage used.

50. Many scholars believe that Nehemiah's tax lapsed at some point but was reinstated in the early first century B.C.E. as a result of the Pharisees gaining the upper hand in their struggle with the Sadducees. See e.g. Liver, supra n. 41, at 189 and halacha cited therein. Others have suggested that the one-third shekel tax of Nehemiah was raised to a half-shekel tax, at which point the connection between Moses' half shekel and the later tax was made. See e.g. McEleney, Neil J., MT 17:24-27 Who Paid the Temple Tax? A Lesson in Avoidance of Scandal, 38 Cath. Biblical Q. 178, 180 (1976)Google Scholar.

The Dead Sea Scrolls revealed that the Essenes, a religious community at odds with those who managed the Temple, appear to have accepted that the obligation could be traced to Moses but construed the passage to impose a once-in-a-lifetime obligation on all Jews. See Weinert, F.D., 4Q159: Legislation for an Essene Community outside of Qumram?, 5 J. Study Judaism Persian, Hellenistic & Roman Period 179 (1974)CrossRefGoogle Scholar. According to Liver, the Essene rejection of the annual nature of the obligation likely reflects the fact that the Pharisees reestablished the temple tax after the Essenes had split from the larger community. Liver, supra n. 41, at 195.

The Pharisees were a group within Judaism prominent in the second and first century B.C.E. They promoted strict adherence to both the written law and the oral tradition that was later recorded in the Talmud. The Sadducees were another group from the same period. They stressed only the written law and were closely associated with the temple. The Sadducees disappeared as a force in Jewish life with the destruction of the Second Temple in 70 C.E.

51. Matt 17:24-27. It is somewhat ambiguous whether Jesus' statement regarding the son is meant to encompass Peter as well, all Christians or all humans.

52. For a discussion of this episode, which some scholars believe to have been added to Matthew at a late date, see McEleney, supra n. 50 at 178-192; Montefiori, supra n. 37; Garland, David E., Matthew's Understanding of The Temple Tax, in Socy. Biblical Literature Seminar Papers 190–209 (1987)Google Scholar.

53. See Matt 21:12-13; John 2:13-16; Mark 11:15.

54. Mishnah, , Shekelim, ¶ 8:8 Google Scholar.

55. See Carlebach, A., Rabbinic References to Fiscus Judaicus, 66 Jewish Q. Rev. 57 (1975)CrossRefGoogle Scholar; Garland, supra n. 52, at 196.

56. Josephus, Flavius, The Wars of the Jews, Bk. VII, 218 Google Scholar.

57. Mishnah, , Shekelim, ¶ 2:4 Google Scholar.

58. Id. at ¶ 1:1. Adar is the 6th month of the civil year in the Jewish calendar and the 12th month of the religious year. It generally falls in the Spring. In leap years, a second month of Adar is added to the calendar. See Bushwick, Nathan, Understanding The Jewish Calendar (Moznaim Publg. Corp. 1989)Google Scholar for an in-depth discussion of the Jewish calendar.

59. Mishnah, , Shekelim1:3 Google Scholar.

60. Id. at ¶ 1:7.

61. id. at ¶ 1:3.

62. Id. at ¶ 1:5.

63. Id. at ¶ 1:5.

64. Id. at 1:3. The Mishnah reflects a dispute about whether priests should be subject to the tax, but apparently the priests prevailed.

65. Id. at ¶ 2:2.

66. Id. at ¶ 6:6.

67. Deut 14:22. Tithing is referred to at numerous other places in the Bible. See e.g. Lev 27:30 (“Any tithe of the land, of the seed of the land, of the fruit of the tree, belongs to Hashem, is holy to Hashem.”); Num 18:21-24 (“To the sons of Levi, behold! I have given every tithe in Israel as a heritage in exchange for the service they perform, the service of the Tent of Meeting….”); Prov 3:9 (“Honor Hashem with your wealth, and with the first of all your produce ….”); Mal 3:10 (“Bring all the tithes into the storehouse ….”).

68. See Stackert, Jeffery, Rewriting the Torah: Literary Revision in Deuteronomy and the Holiness Legislation 231 et seq. & n. 397 (Forschungen zum Alten Testament No. 52, Mohr Siebeck 2007)Google Scholar. Chapter 4 is devoted to tithing and is concerned primarily with examining the connections between the different descriptions of tithing found in the Torah. However, Stackert surveys the leading academic scholarship regarding the practice's origins and how it functioned. Most scholars think the actual tithe differed significantly from the literal descriptions found in the Torah and Talmud.

69. Id. at 232 and references therein.

70. I have described the rules for agricultural tithing, including the detailed income definition rules found in the Mishnah and Tosefta, in greater detail in Agricultural Tithing and (Flat) Tax Complexity, supra n. 9. I present here the information most relevant to the question of tax equity.

71. Although tithes are mentioned at a number of different places in the Hebrew Bible, see supra n. 67, the passage in Deuteronomy is the only one to mention the second tithe. Some sources refer to a second and third tithe, counting maaser sheni and maaser ani as separate tithes.

72. Deut 14:29.

73. Num 3:5 et seq. For a detailed discussion of the differing descriptions of and roles attributed to the Levites, see Stackert, supra n. 68, at ch. 4, Excursus 2.

74. Num 35:1-8.

75. Num 18:21-24.

76. Talmud, B., Kethuboth 26aGoogle Scholar; Rambam, Mishneh Torah, Zaraim, Masserot 1:4 Google Scholar. Ezra was a priest and scribe who lead the Jewish people on their return from captivity in Babylon. Ezra 7:127. For a good translation of the Mishneh Torah, see Maimonides, Moses, The Code of Maimonides (Obermann, Julian et al. eds., Rabinowitz, Jacob J. et al. trans., Yale U. Press 1949)Google Scholar.

77. Deut 12:17-18, 14:23. Those who lived far from the Temple in Jerusalem were authorized to redeem the tithe and save the proceeds until they could travel to Jerusalem, purchase food and consume it there. Deut 14:24-26.

78. For purposes of the agricultural tithe, the poor were defined as those who did not have sufficient resources to live for an entire year. See Mishnah, , Pe'ah 8 & 9 Google Scholar. Rabbi Yizchak of Vienna (1190-1260 C.E.) and Rabbenu Efraim (d. 1175 C.E.) asserted that this same level defined poor for purposes of maaser kesafim. See Tur, , Yoreh De'ah 253 Google Scholar; Shulchan Arach 253:2. Others contended that in urban societies, the poverty level should be updated to reflect the absence of aid measures available to those who lived in agrarian societies, such as pe'ah. These commentators articulated a standard that focused on whether a person had sufficient assets to produce sufficient income to live on for a year. See Rabbi Yitzchak of Korbil (d. 1280 C.E.) as described in the Tur 253. See also Karo, , Aruch, Shulchan, Yoreh De'ah 253:2 Google Scholar.

79. Exod 23:11; Lev 25:1-7. Any food that spontaneously grew in the fields was to be left to the poor and animals. Special rules address how to treat fruits and nuts that grow on vines and trees in the seventh year, absent any effort by the farmer to plant or tend the produce. See generally Mishnah, , Sheviis 4, 7 & 8 Google Scholar. For a discussion of the Jewish calendar, see Bushwick, supra n. 58.

80. 1 Sam 8.

81. These rules are contained in the Mishnah, Masserot and Tosefta, Masserot and are described in Rambam, Mishneh Torah, Zaraim, Masserot.

82. Rambam, , Torah, Mishneh, Zaraim, Maaserot 1:5 Google Scholar.

83. Lev 19:9; Lev 23:22.

84. Id. at 19:10.

85. Id. at 24:19.

86. Deut 26:1-11. Two obligations apply after the harvest: terumah, id. at 18:4, and challah. Num 15:20. Terumah is a small amount (ranging from 1/40th to 1/60th of the produce) that was to be separated and given to a Cohen (pl. Cohenim), who was to eat it while ritually pure. Lev 22:1-15. Cohenim were the descendants of Aaron, Moses' brother, and served as God's priests. Id. at 1, 8. The challah obligation required that a small portion of dough be separated and offered to a Cohen, who again was to eat it while ritually pure.

87. I describe the specific rules for this practice in greater detail in Maaser Kesafim and the Development of Tax Law, supra n. 9. I present here only that information that is relevant to the question of tax equity.

88. Responsa literature, also called She'elot U'Teshuvot or Shu't, consists of written opinions offered by prominent rabbis on difficult questions posed to them in their role as authorities on Jewish law. Many rabbis have published their responsa so that others could look to them for guidance. For a discussion of the nature and role of responsa literature, see Lifshitz, Berachyahu, The Legal Status of the Responsa Literature, originally published in Shenaton Ha-Mishpat Ha-Ivri, The Institute for Research in Jewish Law, Hebrew University, vols. 9–10, pp. 265–297 (1988–1989)Google Scholar translated in Authority, Process And Method: Studies In Jewish Law 59 (Ben-Menahem, Hanina & Hecht, Neil S. eds., Harwood Academic Publishers 1998)Google Scholar [hereinafter Studies in Jewish Law]; see also Warhaftig, Zerah, Precedent in Jewish Law, originally published in Shenaton Ha-Mishpat Ha-Ivri, The Institute for Research in Jewish Law, Hebrew University, Vols. 6–7, pp. 105–132, (1979–1980)Google Scholar translated in Studies in Jewish Law, supra, at 1 (discussing whether responsa were or should be binding on judges or rabbis).

89. See e.g. Deut 15:7-11.

90. Id. at 5:32-33.

91. Id. at 15:8.

92. Rambam, , Torah, Mishneh, Zaraim, Matanos Anayim 7:5 Google Scholar.

93. Talmud, J., Pe'ah 1:1 Google Scholar; Rabbi Josef Karo (1488-1575), Aruch, Shulchan, Yoreh De'ah 249:1 Google Scholar; Radbaz loc. cit. (commenting on Rambam, , Torah, Mishneh, Zaraim, Matanos Anayim 7:5 Google Scholar).

94. Karo, , Aruch, Shulchan, Yoreh De'ah 249:2 Google Scholar.

95. Id. at 249:1.

96. See e.g. Talmud, J., Pe'ah 1:1 Google Scholar; Talmud, B., Taanith 20(b)Google Scholar; Rabbi Eliyahu ben Shlomo Zalman (the Vilna Gaon), Talmud, J., Pe'ah 1:1 Google Scholar; Rabbi Yitzchak ben Moshe of Vienna (1180-1250), Or Zarua: Laws of Charity § 13; Rema, , Aruch, Shulchan, Yoreh De'ah 249 Google Scholar; Rabbi Yechiel Michal Epstein (1835-1905 C.E.), HaShulcan, Aruch, Yoreh De'ah 249:3–4 Google Scholar.

97. See e.g. Rabbi Avraham Danzig (1748-1820 CE.), Adam, Chomas, Laws of Tzedakah § 144, ¶ 10Google Scholar (“A very wealthy man may distribute more than one-fifth of his possessions”); Rabbi M. Sternbuch, Moadim Uzuanim (“It seems obvious that the allocations of one-tenth and one-fifth in regard to charity apply only to one who has inadequate resources. One who has adequate resources has a Torah obligation to give according to his resources”). See also Auerbach, Rabbi S.Z., quoted in Kesafim, Maaser, On Giving A Tenth To Charity Hebrew Appendix p. 19 (Domb, Cyril ed., 4th rev. ed., Feldheim Publishers 1999)Google Scholar. Rabbi Feinstein concluded that the amount should be limited to 20% unless there is a question of saving a life. Igroth Moshe, , Yoreh De'ah 143 Google Scholar.

98. The Torah contains no set allocation for how many good deeds one ought to do. However, if the good deeds are not done personally, but rather by giving money to others in need, there is a precise allocation, namely 20%. Talmud, J., Pe'ah 1:1 Google Scholar.

99. Gen 14:20 (“and he gave him a tenth of everything”).

100. When Isaac sent Jacob from the land of Israel to find a wife, Jacob stopped for the night at what was to become the Temple Mount. While he slept, he saw a vision of a ladder stretching to heaven with angels ascending and descending upon it. In this dream, God informed Jacob that he would give to Jacob and his offspring the land on which he was lying and that He would be with Jacob wherever he went. When Jacob awakened, he made the following vow: “And whatever You will give me, I shall repeatedly tithe to You.” Gen 28:22.

101. The word “repeatedly” in this verse is the English translation of an infinitive absolute in which the verb is repeated. English translators take the repetition to imply emphasis, but numerous rabbis believe that it reflects a promise to separate out two tithes, i.e., 20%, and not just 10%. The notion of a double tithe raises the question as to whether one should separate out 20% of the original amount, or give 10% of the original amount, and then 10% of what remains. The Talmud explains that 20% of the original amount is the appropriate figure. See e.g. Talmud, B., Kethuboth 50aGoogle Scholar; Talmud, J., Pe'ah 1:1 Google Scholar. This differs from the practice in agricultural tithing, where the second tithe is determined net of terumah and the first tithe.

102. Epstein, , HaShulchan, Aruch, Yoreh De'ah 249:2 Google Scholar.

103. Gaon, Vilna, Talmud, J., Pe'ah 1: 1 Google Scholar.

104. At some level of abstraction, there is little difference between expenses that are explicitly identified as communal obligations that were allocated to individuals and those identified as personal obligations to pay money for what amount to communal expenditures, such as the support of the Levites. This is especially true where the notion of a secular state, separate from the religious state, was not well developed.

105. This material is likely the least familiar to modern readers. Accordingly, I cover it in somewhat greater detail than the prior three examples.

106. See e.g. Talmud, B., Taanis 16b (cantors)Google Scholar; Tosefta, , Bava Metzia 11:11 (synagogues)Google Scholar.

107. The benefits principle of taxation is often traced to the Enlightenment, where political theorists attempted to develop a contract-based explanation to justify government. See Dodge, supra n. 14, at 402 n. 9. The Talmudic discussions of communal obligations reveal that the principle has a much older pedigree.

108. Talmud, B., Bava Basra 8aGoogle Scholar. Rav Pappa lived in Babylon, and his opinions date from around 350-375 C.E.

109. Id. One rabbi questioned whether the inhabitants of cities in the interior of a country benefited from walls. The Talmud notes that city walls are justified because invaders could penetrate far beyond the borders. Id. at 7b. Thus, the burden for establishing that a given project is truly beneficial to a community was quite great, and the range of permissible projects was far narrower than that recognized by modern governments and communities.

110. Id. This decision appears to contradict several baraisot (written authority from the time of the Mishnah), which treat those who have lived in a town for under 12 months as residents. For instance, the rules against idolatry, which call for residents of a city to be stoned, are applied to those who have lived in a town for 30 days. Id. at 8a. Similarly, residents in a town are required to make some payments, such as contributions to charity, long before they have lived in a town for 12 months. Talmud, B., Bava Basra 8aGoogle Scholar. The Talmud resolves this apparent conflict by distinguishing citizenship for tax purposes from residency for other purposes; for tax purposes one must live in a city for 12 months before being required to contribute to communal projects.

111. Rav Yehudah lived at the time the Mishnah was redacted, but his opinions are contained in the Gemara.

112. Rabbis cannot be made to go out and help dig the well with the townspeople, if they organize a work detail to do it. The Talmud states that rabbis do not perform manual labor, as that would dishonor the Torah, which they represent. Id. at 8a.

113. Id. at 7b. R' Yochanan was one of the most respected Torah scholars of his time. R' Elazar was his student. They both lived in the 3d century C.E.

114. Ritva, , Talmud, B., Bava Basra 7bGoogle Scholar.

115. The Tosofists were the intellectual and in some cases biological descendants of Rashi, a prominent eleventh-century rabbi from Trier (Treves). Both Rashi's and the Tosofists' commentaries on the Talmud are routinely printed with the Talmud and are afforded significant weight.

116. Tosofoth, , Talmud, B., Bava Basra 7bGoogle Scholar.

117. Another example of this principle can be found in Talmud, B., Bava Kamma 116bGoogle Scholar. The Talmud describes a caravan that is beset by robbers and has to pay a ransom. The cost of the ransom is allocated based on the amount of money each person carries, and the benefit provided correlates to the money. In contrast, if the caravan hires a guide, the costs are allocated both on the basis of money carried and per person, as the guide protects both life and property by keeping the caravan from getting lost and beset by beasts and bandits.

118. See supra text accompanying n. 106.

119. Karo, , Aruch, Shulchan, Choshen Mishpat 163:3 Google Scholar, Yoreh De'ah 247:7 Google Scholar & Orach Chayam 53:23 Google Scholar. Rabbi Karo (1488-1575) wrote the Shulchan Aruch (c. 1565 C.E) in an effort to put together a readable code of Jewish law. It is organized along the same lines as the Arba'ah Turim, an earlier effort to codify the law (c. 1300 C.E.). It provides a Sephardic view of the law.

120. Rema, , Aruch, Shulchan, Orach Chayam 53:23 Google Scholar. Moshe ben Israel Isseries (c. 1525-72 C.E.) was known as Rema. He wrote a commentary on the Shulchan Aruch called the Mappah (c. 1675 C.E.). Shulchan Aruch means “the set table.” Mappah means table cloth. Rema's commentary provided the Ashkenazic perspective on the rules described in the Shulchan Aruch and helped make this code acceptable to most of the Jewish communities. The two are commonly printed together.

121. Gaon, Vilna, Aruch, Shulchan, Orach Chayam 53:26, n 37Google Scholar. Elijah (Eliyahu) ben Shlomo Zalman (1720-97 C.E.) was known as the Vilna Gaon.

122. Shu't Rashba, vol. 3 # 380-382. Rabbi Shlomo ben Aderet (1235-1310 C.E.) was known as “Rashba.” He was a disciple of Rabbi Moshe ben Nachman (Ramban or Nachmanides) (1194-1270 C.E.) & Rabbeinu Yonah of Gerona (1190-1263 C.E.). He lived in Barcelona and wrote thousands of responsa.

123. Id. at vol. 3, # 380. Up until fairly recently, secular rulers would require Jewish communities living in their lands to pay over to them a set sum, leaving it to community leaders to decide how best to collect the sum from community members. The religious authorities understood that failure to pay the required taxes could lead to expulsion of the entire community or could bring discredit to God. Thus, they made clear that tax evasion was against Jewish law, even if the taxes were to be paid to a gentile ruler. For a discussion about tax evasion, see Dr. Meir Tamari, Parshat Shemot: The Challenge of Wealth: Are We Obligated to Pay Taxes?, http://www.besr.org/dvartorah/tamari/Shemot.html (accessed Nov. 26, 2007).

124. Rashba cited Talmud, B., Kethubos 66bGoogle Scholar, which relates the story of Nakdimon ben Guryon. Despite the charity he performed, ben Guryon was brought low because he did not do enough, commensurate with his wealth.

125. Shu't Rashba, vol. 3, # 381.

126. Id. at vol. 3, # 382.

127. The Taz, , Aruch, Shulchan, Orach Chayam 53:23, n. 14Google Scholar. David ben Samuel HaLevi Segal (1586-1667 C.E.) was known as the Taz.

128. The Taz also noted that the cantor was the leader of communal prayers and could therefore be viewed as performing a function analogous to the communal sacrifices that occurred while the temple stood. As those sacrifices were funded through an equal half-shekel contribution, so should at least some portion of the cantor's cost be funded through equal contribution. Id.

129. Gaon, Vilna, Aruch, Shulchan, Orach Chayam 53:23, n. 37Google Scholar, citing, among other things, Talmud, B., Bava Kama 116bGoogle Scholar, discussed above at n. 117.

130. I do not mean to suggest here that the interpretive process is not at play for those who read the Bible literally. Rather, it is more obviously and admittedly at play for those who deviate from the Bible's purported literal meaning.

131. Looking only to the method of allocation without considering the religious functions served rips the examples out of context and diminishes their value.

132. Moreover, these examples are sufficiently different from modern tax systems that it would be a mistake simply to import the vision of tax equity allegedly inherent in them into our own tax system.

133. The Rashba, recognizing that the benefits principle might impose burdens on those who were unable to pay, concluded that the costs of obligatory communal expenditures should be allocated progressively. See supra text accompanying nn. 123-124. As all government expenditures in the U.S. are self-imposed, they fall outside the category the Rashba describes. Nonetheless, the principle he describes, which melds tax and charity together, could be applied to self-imposed obligations, thus supporting progressive taxation. However, this would appear to contradict Rashba's own opinion and the clear holding of the Talmud.

134. Religious authorities have adduced a number of different sources for this prohibition, including Exod 30:11-16. They also describe a number of different methods of counting people indirectly so as to avoid violating the prohibition. For a detailed discussion of the prohibition and the indirect counting techniques, see Bleich, J. David, Contemporary Halakhic Problems vol. 3, ch. XIII, “The Controversy Concerning the Israeli Census,” 306–328 (Yeshiva U. Press 1989)Google Scholar.

Various practices have developed to avoid direct counting. For instance, a minyan (10 people) is required for prayers. Rather than count to determine whether a minyan is present, the practice arose of reciting a verse ten words long, pointing to a new person with each new word. If the reciter completes the verse, ten men are present and prayers may begin.

135. For instance, God in his anger against Israel incited King David to conduct a census. When David did so without collecting a half-shekel and later repented, he was offered a choice of three punishments, including a seven-year famine, fleeing before his enemies for three months, and a three-day plague. David chose the plague, and seventy thousand people died as a result. 2 Sam 24.

136. Exod 38:25.

137. See the commentary on Exod 30:11-16 found in the Stone Edition of the Chumash and the sources cited therein. Indeed, some commentators have concluded that the requirement of half a coin was meant to show that each person alone was incomplete, thus reinforcing the notion that paying the temple tax was a form of unification. The rabbis seem to assume that the virtues of each individual combine to create a transcendent entity and that the flaws of any one individual will be overlooked. They ignore the possibility that the worst features of each individual will combine to create an inferior one.

The requirement that prayers be offered only if a minyan has been established provides another example of how the collective was understood to be greater than the individual.

138. Mishnah, , Shekelim, 11:5 Google Scholar.

139. Several rabbis set a 1/3 shekel minimum as the amount necessary to fulfill the obligation of tzedakah. Karo, , Aruch, Shulchan, Yoreh De'ah 249:2 Google Scholar, based on Talmud, B., Bava Basra 9aGoogle Scholar. The notion was that the near destitute should do some token amount of charity, lest the obligation fall only on the well off. While this is less than the half shekel required for the temple, the difference between a half and a third of a shekel is not so great as to make one a token and the other a significant burden.

140. The shekel was originally a unit of weight, but over time shekel coins developed. Significant debate exists regarding just how much silver a shekel represented, and it may well be that the value of the shekel changed over time. Indeed, the alleged change in value is what allows some rabbis to assert that the 1/3 shekel tax described in Nehemiah is the same as the half-shekel tax in existence during the life of Jesus.

For a discussion of the different possibilities for the value/weight of a shekel and the different coins that could possibly be used to satisfy the obligation, see J. Liver, supra n. 4, at 182, n. 18; McEleney, supra n. 50, at n. 2. Garland, David E., Matthew's Understanding of the Temple Tax (Matt 17:24-27), 1987SBL Seminar Papers, 190 n. 1Google Scholar. To get a sense of a shekel's value in modern measurements, compare Ish, Chazon, Yorah De'ah 182:19 Google Scholar (arguing that the shekel was 16 grams or .51 troy ounces of pure silver) with Rashi and Nachmanides (asserting that the shekel was 13.33 grams or .43 troy ounces of pure silver). See also Rabbi Yaakov Yisrael Kanievsky (1899-95 C.E.), Shiurin shel Torah (c. 1968) (discussing different measurements found in the Torah).

141. See text accompanying supra n. 8.

142. Merchants and others who did not grow produce were exempt from this tax, so that neither the burden of payment nor the obligation to support the Levites was imposed on the community as a whole.

143. Talmud, B., Kethuboth 26aGoogle Scholar; Rambam, , Torah, Mishneh, Zaraim, Masserot 1:4 Google Scholar.

144. Deut 14:28.

145. See e.g. Deut 15.

146. Nor can one point to the relatively low 10% rate as evidence that low tax rates are consistent with Judeo-Christian values. As described above, the tithe actually entailed two separate tithes. Thus, the base amount is 20%. Agricultural tithing precludes any deductions. Thus, as Professor Livingston points out, the effective rate on net income is far higher. See Livingston, Rendering Unto Caesar, supra n. 5, at 8. The obligations of pe'ah, leket and shikkah also reduce the amounts available to farmers. When one adds in the obligation of charity, the amount of income free from any communal claim drops even further.

147. See e.g. Blum & Kalven, supra n. 4, at 420.

148. Bankman & Griffith, supra n. 4.

149. Deut 14:28.

150. Livingston, supra n. 5, at 8.

151. The ban was actually on consuming the produce as part of a meal. The Tosefta (a companion to the Mishnah) makes clear that one could eat produce as part of a snack without tithing. The halacha goes into great detail regarding what differentiates a snack from a meal. For a translation of the relevant tractate of the Tosefta, and commentary thereon, see Jaffe, Martin S., Mishnah's Theology Of Tithing (Scholars Press 1981)Google Scholar.

152. The tithing rules precluded the aggregation of different crops, a rule designed to ensure that the Levites had a variety of food to eat and that the farmers not tithe a low value crop, while keeping more valuable crops for themselves. Thus a farmer with an equal number of apples and oranges would have to tithe 10% of each and could not tithe 20% of his apples. However, one was permitted to aggregate the same crop grown in different fields, allowing a farmer with an equal number of apples in two distant fields to tithe 20% from one field, and none from the other. Tracking produce in separate fields to make sure that, in the aggregate, the threshold for the entire crop had not been reached would have been quite difficult.

153. Mishnah, , Terumos 4:6 Google Scholar.

154. For instance, if he filled 8 containers, the correct amount of the tithe would be 8/10ths of a container. This might be difficult to determine. Of course, determining the tithe by volume requires identical containers, which were difficult to make before the invention of mass production.

155. Mishnah, , Teruimos 4:6 Google Scholar.

156. Id.

157. Thus, if the threshold were 100 bushels, and he used containers holding ½ bushel, the progressively higher rates would apply after he had filled 200 containers. If, instead, the farmer used 2-bushel containers, he would reach the threshold after filling 50 containers.

158. The rabbis decreed that the poor receive charity, the near destitute be required to give one-third of a shekel, most people should give 10% of their income, and the wealthy should consider giving 20% and possibly more. Thus, the rate structure is graduated and based on the wealth of the donor.

159. See supra Part II.C.

160. See e.g. Dodge, supra n. 14.

161. Blum & Kalven, supra n. 4, at 480-484 (noting that the ability-to-pay theory often collapses into the equal sacrifice theory, which depends on the declining marginal utility of money and has its own problems, or other less coherent arguments).

162. Professor Dodge has also argued that the ability-to-pay theory works well with different theories of social justice and with consumption and income taxes. Dodge, supra n. 14, at 457.

163. See e.g. Manion, Christopher, Faith-Based Taxes in Alabama, http://www.lewrockwell.com/manion/manion35.html (06 18, 2003)Google Scholar.

164. As the National Conference of Catholic Bishops explained in their Pastoral Letter, progressive rates are redistributive in that they relieve the burdens on the poor and shift them to the wealthy. See NCCB, supra n. 7. Some scholars have argued that progressive rates are not redistributive based on a benefits theory. See Kolnhauser, Marjorie E., Choosing a Tax Rate Structure in the Face of Disagreement, 52 U.C.L.A. L. Rev. 1697, 1707 (2005)Google Scholar, but most seem to concede this point. Indeed, some argue that the redistributive nature of progressive taxation is its best selling point. See Livingston, Michael A., Blum and Kalven at 50: Progressive Taxation, “Globalization, “ and the New Millenium, 4 Fla. Tax Rev. 731 (2000)Google Scholar.

165. Assuming that walls were designed to prevent looting, walls protected wealth, as opposed to life.

166. See Blum & Kalven, supra n. 4, at 451-453, for a discussion of the difficulties in measuring benefits in a modern society. Citing John Stuart Mill, the authors further question whether the wealthy truly do benefit more than the poor, as some basic ievel of expenditure would be necessary, regardless of the wealth of an individual.

167. See e.g. Geier, Incremental Versus Fundamental Tax Reform, supra n. 14, at 119 (asserting that the top 1% of earners benefit disproportionately from the regulated capitalist system, where benefits are measured in economic power, i.e., income); Geier, Time to Bring Back the “Benefit” Norm?, supra n. 14.

168. See Blum & Kalven, supra n. 4, at 453-455.

169. Dodge, supra n. 14, at 412. Among other things, it is not possible to determine how much of one's success is attributable to the government, individual effort, or luck.

170. Id. at 431.

171. For instance, a direct subsidy to a business might spur economic development that creates jobs and provides indirect benefits to society at large. Depending on the circumstances, an argument could be made that the increased tax revenues from the economic development will more than replace the revenues spent on the subsidy. Such claims are virtually impossible to prove.

172. For example, it could be argued that welfare payments benefit society as a whole because they reduce crime and therefore reduce the cost of police, the court system and prisons.

173. See e.g. Nozick, Robert, Anarchy, State and Utopia (Basic Books 1974)Google Scholar (arguing that states should be minimal and should focus primarily on protecting citizens against force, fraud and other similar evils); Epstein, Richard A., Taxation in a Lockean World, in Philosophy and Law 49 (Coleman, Jules L. & Paul, Ellen Frankel eds., 1987)Google Scholar (arguing that taxation should be minimally invasive so as not to affect citizen's preferences).

174. See e.g. Nozick, supra n. 173; Epstein, supra n. 173, at 68 (arguing that any redistribution through progressive rates is inappropriate because not pareto-superior, the measure against which all government actions must be judged). As noted supra at n. 164, some scholars have argued that progressive rates are not redistributive based on a benefits theory, while others argue that the redistributive nature of progressivity is its best selling point.

175. See supra Part II.D.

176. Talmud, B., Bava Basra 8aGoogle Scholar.

177. As Professor Epstein notes, if one rejects the notion of the welfare state and instead adopts a Lockean view of individual rights, proportional taxation seems required. See Epstein, supra n. 173, at 68.

178. See Blum & Kalven, supra n. 4, at 451-455.

179. This stands in contrast to the rabbis' perception of the ability-to-pay principle adopted for purposes of determining one's obligation to do charity, which they viewed as sanctioning progressive rates.

180. In many regards, Rashba's view is consistent with those held by the consequentialists, who justify progressive taxation by reference to the obligation to the poor. However, Rashba's insight is more practical than theoretical. As such, it does not reflect a norm of fairness, so much as a concession to reality.

181. For instance, one could imagine classifying all of the transfer expenditures in the budget as charitable and therefore eligible for progressive taxation. In contrast, one could attempt to redefine what qualified as obligatory to include a wide range of expenditures, thus justifying progressive taxation.