Beyond Caesar’s Grasp: Setting Constraints on Government’s Taxing Hand

Abstract

Are there conceivable limits to Caesar’s power in defining and claiming what is his? This paper revisits the ageless financial tribute embodied in the adage ‘give Caesar what belongs to Caesar’. We explore echoes of the adage in modern taxation and the fiscal demands of contemporary governance in constitutional democracies. We reflect on the boundaries, or perhaps the lack thereof, to what can truly belong to Caesar. Indeed, taxation is the lifeblood of any government. Without taxes no government would run. It is against this and the consequential impact on the social contract theory that the law exists or should exist to limit the excesses of a deceptive or overly ambitious government. Using a case study of Kenya, we depict the challenges citizens face when it becomes evident that the executive and legislature collaborate to impose taxes without the blessings of the citizenry. In such scenarios, citizens often seek refuge in the Judiciary, notwithstanding its limited authority to dictate terms to the other branches of government. The emergence of proponents advocating for the establishment of a mechanism to set a maximum tax ceiling, beyond which the government can impose further taxes reflects the growing consensus. This paper critically engages with these fundamental questions, providing insights into the challenges and potential strategies for achieving a balanced and just taxation system within the constitutional governance framework. Simultaneously, it scrutinizes the link between taxes and socioeconomic rights in middle-economies and offers progressive solutions to the menace of unsustainable tax policies in middle-economies. The need for such a framework cannot be gainsaid. In middleeconomies like Kenya, policies that govern tax are a major stake on the trajectory the economy takes in terms of development, infrastructure and provision of socio-economic rights. Adequate provision of socio-economic rights is made possible directly or indirectly by the policies adopted by the government. As such, high-rate tax models will inevitably lead to inadequate provision of socio-economic rights and delayed growth. And yet, taxes imposed through perfect models, can prompt the growth of an economy which results in adequate provision of socio-economic rights. We conclude that even though there is no mathematical precision in determining how high taxes should go, taxes should not be oppressive. A perfect tax policy is one that does not violate socio-economic rights or any other rights.